PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers shall generally consult or procure the consultation of the Purchaser in relation to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account. 6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser. 6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts. 6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers shall procure that from the date of this Agreement until Completion each Group Company will conduct its business in the ordinary course and that, in the absence of the prior written consent of the Purchaser, no Group Company will do or agree to do anything which is not of a routine and unimportant nature including: (a) entering into, modifying or terminating any material contract or any contract affecting a material part of its business or entering into any unusual or onerous contract; (b) disposing of or granting any option in respect of any material part of its assets; (c) acquiring or disposing of any fixed asset having a book value in excess of twenty thousand pounds (£20,000); (d) making any capital commitment in excess of twenty thousand pounds (£20,000) individually or which together with all other such capital commitments entered into between the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregate; (e) making any material change in the nature or organisation of its business; (f) discontinuing or ceasing to operate all or a part of its business; (g) making any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more other than salary increases in the usual course and at normal market rates; (h) appointing, employing or offering to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate; (i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment; (j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement); (k) granting any loan, advance or capital contribution to any other person; (l) reducing its share capital or purchasing or redeeming its own shares; (m) acquiring any share or other interest in any person or other venture or acquiring any business carried on by any person; (n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities; (o) incurring or paying any management charge or making any other payment otherwise than in the ordinary course in each case to any member of the Retained Group; (p) granting, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees; (q) instituting or settling any legal proceedings (except debt collection in the normal course of business); (r) failing to take any action to maintain in force any of its insurance policies or doing anything to make any policy of insurance void or voidable or reducing the level of insurance cover provided; (s) declaring, making or paying any dividend or other distribution; (t) creating, allotting or issuing any shares, loan capital or other securities; (u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securities; (v) amending its articles of association or equivalent constitutional documents, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documents; (w) making any change to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared; (x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement); (y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes; (z) adopting or changing any method of Tax accounting; (aa) filing any amended Tax Return; (bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund; (cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (dd) changing its accounting reference date; (ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business; (ff) passing any resolutions in general meeting or by way of written resolution; (gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms of any of the Leases; (hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases; (ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts of the Properties, save with respect to any Outstanding Agreements for Lease; (jj) grant any right easement licence in relation to the Properties; (kk) forfeit or accept a surrender of any Lease; or (ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the Properties.
Appears in 2 contracts
Samples: Share Sale and Purchase Agreement (Digital Realty Trust, L.P.), Share Sale and Purchase Agreement (Digital Realty Trust, L.P.)
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers shall generally consult or procure the consultation of the Purchaser in relation to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers Vendors shall procure that from the date of this Agreement until Completion each Group Company will conduct its business in the ordinary course and that, in the absence of the prior written consent of the Purchaser, no Group Company will do or agree to do anything which is not of a routine and unimportant nature including:
(a) entering into, modifying or terminating any material contract or any contract affecting a material part of its business or entering into any unusual or onerous contract;
(b) disposing of or granting any option in respect of any material part of its assets;
(c) acquiring or disposing of any fixed asset having a book value in excess of twenty thousand pounds (£20,000);
(d) making any capital commitment in excess of twenty thousand pounds (£20,000) individually or which together with all other such capital commitments entered into between the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregate;
(e) making any material change in the nature or organisation of Completion, that each Group Company carries on its business;
(f) discontinuing or ceasing to operate all or business as a part of its business;
(g) making any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more other than salary increases in the usual course and at normal market rates;
(h) appointing, employing or offering to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than going concern in the ordinary and usual course of business (and within limits subsisting at as carried on in the 12 months prior to the date of this Agreement, save in so far as agreed in writing by the Purchaser. In particular (but without prejudice to the generality of the obligation imposed by the preceding sentence);, the Vendors shall comply, and shall procure that each Group Company shall comply, with the provisions of Schedule 8 (Pre Completion obligations).
(k) granting any loan6.2 Each of the Vendors shall, advance or capital contribution to any other person;
(l) reducing its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest and shall procure that each of the relevant Group Companies shall, as soon as practicable following the date of this Agreement, and in any person or other venture or acquiring any business carried on by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than in event prior to Completion, provide the ordinary course in each case to any member of the Retained Group;
(p) granting, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment Purchaser with true and complete copies of any applicationand all additional documents entered into following the date of this Agreement in connection with the Redu Restructuring, search, maintenance or other official fees;
(q) instituting or settling provided that any legal proceedings (except debt collection in the normal course of business);
(r) failing to take any action to maintain in force any of its insurance policies or doing anything to make any policy of insurance void or voidable or reducing the level of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe steps in respect of any share or loan capital or other securities;
(v) amending its articles of association or equivalent constitutional documents, adopting further articles of association or passing resolutions the Redu Restructuring which are inconsistent not in compliance with its articles or contemplated by the terms of association the Restructuring Plan will require the prior written consent of the Purchaser before any such action is taken by the Vendors or equivalent constitutional documents;the relevant Group Company in accordance with the terms of Schedule 8 (Pre Completion Obligations).
(w) making any change to 6.3 Each of the accounting proceduresVendors shall, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes makingand shall procure that each of the relevant Group Companies shall, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in soon as practicable following the date of this Agreement);
(y) settling , and in any event prior to Completion, provide the Purchaser with true and complete copies of any and all additional documents entered into or compromising to be submitted in connection with the ESA Tender Process, provided that any claim, notice, audit report or assessment submissions to ESA in respect of Taxes;the ESA Tender Process or arrangements with potential subcontractors will require the prior written consent of the Purchaser before any such action is taken by the Vendors or the relevant Group Company.
6.4 Subject to Applicable Law and any applicable contractual confidentiality obligations to which the relevant Vendor or Group Company is subject, in the period from the date of this Agreement to (and including) the Completion Date, each of the Vendors shall, and shall procure that the Group Companies shall, allow the Purchaser and its agents, advisors and representatives, upon reasonable written notice, reasonable access to:
(za) adopting or changing any method the directors of Tax accounting;the Group, to prepare for the on-boarding and integration planning of the Group into the Purchaser’s Group; and
(aab) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver senior employees and the premises of the statute Group and/or the Books and Records of limitations period applicable or relating in whole or in part to any Tax claim or assessment;
the Group (dd) changing including allowing the Purchaser to take copies of such Books and Records at its accounting reference date;
(ee) making any Tax election or settling or compromising any liability own cost where permitted to Tax or submitting any Tax return which is inconsistent do so by Applicable Law), to the extent reasonably required in connection with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms following:
(i) a requirement of any of the Leases;
(hh) serve Governmental Authority and/or any notice (whether contractual, common law or statutory) on the tenant under any of the LeasesTax Authority;
(ii) grant any actual or enter into potential transaction involving the Purchaser’s Group, including any agreement financing, refinancing, sale, merger, disposal, investment in or grant any lease licence listing of all or other right to occupy any party or parts part of the Properties, save with respect to any Outstanding Agreements for Lease;Purchaser’s Group or its business or undertaking; and / or
(jjiii) grant any right easement licence for the purposes of Purchaser’s (and the Purchaser’s Group’s) debt and / or equity financing of the Transaction.
6.5 Notwithstanding anything in this Agreement to the contrary it is agreed that in relation to the Properties;cooperation referred to in clause 6.4 neither the Vendors nor any Group Company shall be required to take any action that would:
(kka) forfeit cause it or accept a surrender any of its directors, officers or employees to bear any out-of-pocket cost or expense (not otherwise subject to reimbursement) and/or
(b) interfere unreasonably with, or adversely affect, the operation or business of any Leaseof the Group Companies.
6.6 On the date falling three Business Days prior to the Completion Date the Vendors shall deliver to the Purchaser’s Solicitors a copy of a reasonably advanced draft of the Completion Disclosure Letter.
6.7 On the Completion Date the Vendors shall deliver to the Purchaser’s Solicitors a copy of the Completion Disclosure Letter duly executed by each of the Vendors.
6.8 Each of QinetiQ Limited and the Purchaser hereby undertake to act reasonably and in good faith to negotiate a transitional services agreement as soon as practicable following the date of this Agreement and, in any case, prior to Completion in respect of certain services (if any) that may be requested by the Purchaser as are necessary for the Vendors' Group to provide the Group following Completion to ensure the continued operation of the business of the Group in the same manner as it has been conducted in the six month period prior to Completion.
6.9 The Purchaser shall act reasonably and in good faith so as not to prevent or frustrate the:
(a) declaration of, or receipt by the Vendors of, any Pre-Completion Dividend(s); or
(llb) declaration of, or receipt by the withdrawal Company of, any dividend of RSS, in each case whether before or repaying of any monies from any rent deposit deeds held in relation to any of the Propertiesafter their respective declaration.
Appears in 1 contract
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers shall generally consult or procure 5.1 In the consultation of period from the Purchaser in relation to Signing Date until Completion the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers Seller shall procure that from the date of this Agreement until Completion each Target Group Company will conduct its business in the ordinary course and that, in the absence of the prior written consent of the Purchaser, no Group Company will do or agree to do anything which is not of a routine and unimportant nature includingshall:
(a) entering into, modifying or terminating any material contract or any contract affecting carry on the Business as a material part going concern in the normal and ordinary course of its business or entering into any unusual or onerous contractas the Target Group has run the Business for the last twelve months so far as reasonably practicable;
(b) disposing of not grant or granting create or agree to grant any option in respect of any material part of its assetsSecurity Interest over or affecting the Target Group;
(c) acquiring or disposing keep the Buyer updated upon reasonable written request in respect of the Business and promptly provide to the Buyer any fixed asset having a book value information which it may reasonably require in excess of twenty thousand pounds (£20,000);relation to the Business; and
(d) making any capital commitment in excess of twenty thousand pounds (£20,000) individually ensure that all financial transactions relating to the Business shall be conducted through the Target’s bank account or which together with all other such capital commitments entered into between the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregate;
(e) making any material change in the nature cash float at each of the Theatres.
5.2 The Seller shall maintain in force (or organisation of its business;
(f) discontinuing or ceasing to operate all or a part of its business;
(g) making procure that any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more other than salary increases in the usual course and at normal market rates;
(h) appointing, employing or offering to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement);
(k) granting any loan, advance or capital contribution to any other person;
(l) reducing its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest in any person or other venture or acquiring any business carried on by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than in the ordinary course in each case to any relevant member of the Retained Group;
(pSeller’s Group shall maintain in force) granting, modifying or terminating any rights or entering into any agreement up to and including the Completion Date all policies of insurance relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any legal proceedings (except debt collection in the normal course of business);
(r) failing to take any action to maintain Target Group and which are in force any of its insurance policies or doing anything to make any policy of insurance void or voidable or reducing at the level of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securities;
(v) amending its articles of association or equivalent constitutional documents, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documents;
(w) making any change to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement);
(y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes;
(z) adopting or changing any method of Tax accounting;
(aa) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of Signing Date. If any of the terms of Properties or any of the Leases;material physical assets in the properties are lost, destroyed or damaged prior to the Completion Date, the Seller shall procure that any insurance monies recoverable in respect thereof shall be paid to the Target and the Seller shall (or shall procure that any other relevant person shall) direct the relevant insurance company accordingly, and in such event any such insurance monies received by the Seller shall be promptly paid to the Buyer and pending such payment shall be held by it on trust for the Buyer absolutely.
5.3 The Seller shall covenant to the Buyer that between Exchange and Completion:
(hha) serve any notice (whether contractual, common law or statutory) on the tenant under any no member of the Leases;Seller’s Group will receive or benefit from or will become entitled to receive any Leakage; and
(iib) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts no member of the PropertiesSeller’s Group will consent to or vote in favour of any Leakage being paid or made, save with respect to provided that this clause 5 shall not prevent the operation of the Transfer Agreements and it is agreed that any Outstanding Agreements for Lease;
(jj) grant any right easement licence sums received by the Target in relation to the Properties;business transferred under the Transfer Agreements shall be promptly paid to the Seller by the Target.
(kk) forfeit or accept a surrender of any Lease; or
(ll) 5.4 The Seller shall pay to the withdrawal or repaying of any monies from any rent deposit deeds held in relation Buyer on demand an amount equal to any of the PropertiesLeakage.
Appears in 1 contract
Samples: Share Purchase Agreement (Live Nation Entertainment, Inc.)
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers shall generally consult or procure During the consultation of the Purchaser in relation to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers shall procure that period from the date of this Agreement until Completion to Completion, subject to clause 6.2, each Seller shall, and shall procure that the Group Company will conduct Companies shall, allow the Buyer and its business in the ordinary course and thatagents (at its own cost), in the absence of the prior upon reasonable written consent of the Purchaser, no Group Company will do or agree to do anything which is not of a routine and unimportant nature includingnotice during normal working hours:
(a) entering intoreasonable access to, modifying and to take copies of, the books, records and documents of, or terminating any material contract relating in whole or any contract affecting a material part of its business or entering into any unusual or onerous contractto, the Group;
(b) disposing reasonable access to the directors and senior employees of the Group (which shall be coordinated by the Management Sellers), in each case to the extent reasonably required to facilitate the integration of the Group into the Buyer’s Group following Completion.
6.2 The obligations of the Sellers shall under clause 6.1 shall not extend to:
(a) allowing access to information which is reasonably regarded as confidential to the activities of a Seller otherwise than in relation to the Group;
(b) allowing access to information where, in the reasonable opinion of the Sellers, such access would have a material adverse effect on the running of the Business or granting any option result ACTIVE/110746680.7 in respect disclosure of any material part commercially sensitive information to the extent not already disclosed to the Buyer.
6.3 Not less than three Business Days prior to the Completion Date, the Sellers’ Representative shall provide the Buyer with a schedule (the “Pre-Completion Payment Schedule”) setting out:
(a) the amount and allocation of its assetsthe Consideration due to each Seller (and the amount and allocation of consideration payable to each Minority Seller by the Buyer for the sale of the Minority Shares under the Minority SPA);
(b) the amount of the Disclosed Transaction Costs, including:
(i) the portion of such Disclosed Transaction Costs to be deducted under clause 3.1 of the Minority SPA (the “Minority Disclosed Transaction Costs”); and
(ii) the remaining portion of such Disclosed Transaction Costs to be deducted under clause 3.1 of this Agreement (the “Majority Disclosed Transaction Costs”);
(c) acquiring or disposing the amount of any fixed asset having a book value in excess of twenty thousand pounds (£20,000)the Bank Indebtedness;
(d) making any capital commitment in excess the Senior Facilities Break Fee Amount, including:
(i) the portion of twenty thousand pounds such Senior Facilities Break Fee Amount to be deducted under clause 3.1 of the Minority SPA (£20,000the “Minority Senior Facilities Break Fee Amount”); and
(ii) individually or which together with all other the remaining portion of such capital commitments entered into between the date Senior Facilities Break Fee Amount to be deducted under clause 3.1 of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregatethe “Majority Senior Facilities Break Fee Amount”);
(e) making any material change in the nature or organisation of its businessLoan Note Redemption Amount;
(f) discontinuing or ceasing the Interest Amount, including:
(i) the portion of such Interest Amount to operate all or a part be deducted under clause 3.1 of its businessthe Minority SPA (the “Minority Interest Amount”); and
(ii) the remaining portion of such Interest Amount to be deducted under clause 3.1 of this Agreement (the “Majority Interest Amount”);
(g) making any variation to the terms and conditions of employment amount (together with a reasonably detailed description) of any employee earning thirty thousand pounds Leakage (£30,000) per annum or more other than salary increases in the usual course and at normal market rates;
(h) appointing“Pre-Completion Leakage Amount”), employing or offering to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;including:
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting the portion of such Leakage to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement);
(k) granting any loan, advance or capital contribution to any other person;
(l) reducing its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest in any person or other venture or acquiring any business carried on by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than in the ordinary course in each case to any member be deducted under clause 3.1 of the Retained Group;
Minority SPA (p) granting, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non“Minority Pre-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any legal proceedings (except debt collection in the normal course of businessCompletion Leakage Amount”);
(r) failing to take any action to maintain in force any of its insurance policies or doing anything to make any policy of insurance void or voidable or reducing the level of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securities;
(v) amending its articles of association or equivalent constitutional documents, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documents;
(w) making any change to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement);
(y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes;
(z) adopting or changing any method of Tax accounting;
(aa) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms of any of the Leases;
(hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases;and
(ii) grant or enter into any agreement or grant any lease licence or other right the remaining portion of such Leakage to occupy any party or parts be deducted under clause 3.1 of this Agreement (the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation to the Properties;
(kk) forfeit or accept a surrender of any Lease“Majority Pre-Completion Leakage Amount”); or
(ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the Properties.and
Appears in 1 contract
Samples: Sale and Purchase Agreement (Axalta Coating Systems Ltd.)
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers Vendor shall generally consult or procure (subject to any contrary express written instruction from the consultation Purchaser) that the relationships of each member of the Purchaser Group with its customers, employees, suppliers and others with whom it deals in relation to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have connection with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers shall procure that from the date of this Agreement until Completion each Group Company will conduct its business are preserved in all material respects in the ordinary course of business and that the business and operations of each member of the Group are conducted until Completion in the ordinary course of business and in substantially the same manner as it was conducted prior to the date hereof, and in particular, the Vendor shall procure that, in from the absence of date hereof until the Completion Date, without the prior written consent of the PurchaserPurchaser (such consent not to be unreasonably withheld or delayed) or unless Disclosed or otherwise specifically permitted for the Group in this Agreement, no member of the Group Company will do shall:
6.1.1 permit the Sale Shares, the Japan Shares, the Taiwan Shares or agree the Newco Shares to do anything become subject to any Encumbrances;
6.1.2 enter into or vary any contract nor assume any liability which is outside the ordinary or proper course of the business of any member of the Group, including those for a term of more than one (1) year that cannot be terminated without paying any penalty on 90 days' notice or those that require payment of a routine and unimportant nature including:more than US$100,000 per year;
(a) entering into, modifying or terminating 6.1.3 make any material contract change in the nature, scope or any contract affecting a material part organisation of its business nor dispose of the whole of its business undertaking or entering property or a substantial part thereof,
6.1.4 sell, transfer or otherwise dispose of any assets of whatsoever nature except in the ordinary course of business and for a fair consideration;
6.1.5 acquire or form any subsidiary nor acquire any shares or make any capital investment in any Person nor acquire the whole or any substantial part of the business undertaking, assets or business of any other Person or enter into any unusual joint venture or onerous contractpartnership with any other Person;
6.1.6 make any loans or grant any credit (bother than trade credit given in the normal course of business trading and advances made to employees against expenses incurred by them on its behalf);
6.1.7 transfer or remove any cash to any Person that is not a member of the Group (by cash dividend, payment or otherwise) disposing if such transfer or removal would result in the remaining cash of the Group being insufficient to cover checks that have been written by the Group;
6.1.8 enter into any guarantee, indemnity or surety;
6.1.9 hire any employee (save for the purpose of filling a vacant resulting from departure of current employee) for annual compensation of US$50,000 or greater, or make any changes in the terms of employment of any of its employees whose annual compensation is US$50,000 or greater (save with the prior consent of the Purchaser which such consent shall not be unreasonably withheld or delayed) or in any arrangements with its consultants outside the ordinary course of its business;
6.1.10 acquire or dispose of or granting grant any option or right of pre-emption in respect of any material asset or any interest nor give nor receive any service otherwise than at market value;
6.1.11 acquire or dispose of any freehold or leasehold property or grant any lease or third party right in respect of any of the Leased Properties or Owned Properties;
6.1.12 enter into any leasing, hire purchase agreement or any agreement or arrangements for payment on deferred terms;
6.1.13 grant or enter into any licence, franchise or other agreement or arrangement concerning any part of its assetsname, trading names or know-how (if any) save for those which are made in the ordinary or proper course of its business and with the Purchaser's prior consent;
6.1.14 make any distributions of assets or make or declare any dividends (c) acquiring other than cash dividends), pay any individual or disposing of declare or make any fixed asset having a book value in excess of twenty thousand pounds distribution other than cash dividends (£20,000subject to Clause 6.1.8 above);
(d) making 6.1.15 permit any capital commitment of its insurances existing and in excess force as of twenty thousand pounds (£20,000) individually or which together with all other such capital commitments entered into between the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregate;
(e) making any material change in the nature to lapse or organisation of its business;
(f) discontinuing or ceasing to operate all or a part of its business;
(g) making any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more other than salary increases in the usual course and at normal market rates;
(h) appointing, employing or offering to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement);
(k) granting any loan, advance or capital contribution to any other person;
(l) reducing its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest in any person or other venture or acquiring any business carried on by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than in the ordinary course in each case to any member of the Retained Group;
(p) granting, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any legal proceedings (except debt collection in the normal course of business);
(r) failing to take any action to maintain in force any of its insurance policies or doing anything to which would make any such policy of insurance void or voidable or reducing to enter into any new insurance policy other than those existing and in force as of the level date of insurance cover providedthis Agreement;
(s) declaring6.1.16 issue, making pledge or paying sell any dividend shares or other distribution;
(t) creatingcapital stock or issue or sell any warrants, allotting or issuing any sharesoptions, loan capital notes, bonds or other securities;, whether or not exercisable for (or convertible into) shares or capital stock; or
6.1.17 negotiate or agree, conditional or otherwise, to do any of the foregoing.
6.2 From the date of this Agreement, without prejudice to Clause 10, solely in connection with the Purchaser's proposed integration of the Group following Completion, the Vendor shall give and shall procure that the Purchaser or any Persons authorized by it will be given at the sole expense of the Purchaser, such access to the premises and all books, title deeds, records and accounts of each member of the Group as the Purchaser may reasonably request and be permitted to take copies of any such books, deeds, records and accounts and that the directors, officers and employees of each member of the Group shall be instructed to give reasonably promptly all such information and explanations to any such Persons as aforesaid as may reasonably be requested by it or them in each case, upon reasonable notice in advance, during normal business hours of such members of the Group (uor, where necessary, such access to the Vendor or its Associates) creatingand without any undue disruption to the business of the Group (or, issuingwhere necessary, redeeming such access to the Vendor or granting its Associates).
6.3 The Purchaser hereby undertakes that it and its Associates will not, prior to Completion, save as required by applicable law or by the applicable rules of any option relevant supervisory or right regulatory body or securities exchange to subscribe which it or its Associates are subject or unless with the prior consent of the Vendor in writing has been given (which consent may not be unreasonably withheld or delayed or conditioned), make any announcement in connection with this Agreement or divulge any confidential information relating to any member of the Group obtained by it pursuant to this Clause 6 to any Person other than its own directors, officers, employees or professional advisers; provided if the Purchaser or its Associates is required to make such announcement by applicable law or by the applicable rules of any relevant supervisory or regulatory body or securities exchange to which it or its Associates is subject, the Purchaser, shall, as soon as practicable prior to such announcement is made, deliver a draft of such announcement to the Vendor and, to the extent reasonable in the sole opinion of the Purchaser and in accordance with such applicable laws and rules, incorporate any comments which the Vendor may have in respect of any share or loan capital or other securities;
(v) amending its articles the contents of association or equivalent constitutional documents, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documents;
(w) making any change to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement);
(y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes;
(z) adopting or changing any method of Tax accounting;
(aa) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms of any of the Leases;
(hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases;
(ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts of the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation to the Properties;
(kk) forfeit or accept a surrender of any Lease; or
(ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the Propertiessuch draft announcement.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Belden CDT Inc.)
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers 5.1 Between the date hereof and the Completion Date, the Vendors shall generally consult or procure carry on the consultation of Business in the Purchaser in relation usual and ordinary course consistent with prior practice so as to maintain the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable same as a going concern (using its best endeavours to procure collection of all sums payable pursuant to the Leases preserve its assets, customer and supplier relations, employee relations, business and organisation) and shall keep the Purchaser informed of the steps taken to recover such sums provided ensure that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers shall procure that from the date of this Agreement until Completion each Group Company will conduct its business in the ordinary course and that, in the absence of the prior written consent of the Purchaser:
5.1.1 there will be no change, other than changes in the ordinary day-to-day course of business, in the assets or liabilities of the Business;
5.1.2 there will be no expenditure of a capital nature exceeding HK$500,000 in value;
5.1.3 there will be no acquisition or sale or other disposition of, or creation of any Encumbrance over, any asset used or for use in the Business other than in the ordinary course of the Business;
5.1.4 no contracts exceeding 1 month in duration, or which could have a value or liability arising for the Vendors thereunder which could exceed HK$1,000,000 will be entered into, varied or terminated;
5.1.5 there will be no variation of, or agreement to terminate, any of the Purchased Contracts;
5.1.6 there will be no grant or entry into of any licence, franchise or other agreement or arrangement concerning any part of the Intellectual Property;
5.1.7 no change will be made to the terms of employment of any of the Transferring Employees, no Group Company Transferring Employee will do or agree to do anything which is not of a routine be dismissed and unimportant nature including:
(a) entering into, modifying or terminating any material contract or any contract affecting a material part of its business or entering into any unusual or onerous contractno one will be hired for employment in the Business;
(b) disposing 5.1.8 there shall be no variation of terms of any of the Leases or granting grant of any option lease or third party right in respect of any material part of its assetsthe Leased Properties;
(c) acquiring or disposing 5.1.9 no change will be made in the practices of any fixed asset having a book value ordering supplies, shipping goods, invoicing customers and collecting debts to those adopted in excess relation to the Business prior to the commencement of twenty thousand pounds (£20,000)the negotiations which lead to the execution of this Agreement;
(d) making 5.1.10 no changes in management policy of a significant nature will be instituted; and
5.1.11 no agreement, conditional or otherwise, to do any capital commitment in excess of twenty thousand pounds (£20,000) individually or which together with all other such capital commitments entered into between the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregate;foregoing shall be made.
(e) making any material change in the nature or organisation of its business;
(f) discontinuing or ceasing to operate all or a part of its business;
(g) making any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more other than salary increases in the usual course and at normal market rates;
(h) appointing, employing or offering to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at 5.2 As from the date of this Agreement);
(k) granting , the Vendors will ensure that the Purchaser and any loan, advance or capital contribution person authorised by it shall be given such access to the Properties and to any other person;
(l) reducing premises from which the Business is carried on, managed or administered and to all the Books and Records as the Purchaser may reasonably request and be permitted to take copies of any such Books and Records. Each of the Vendors will procure that its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest in directors and employees provide the Purchaser promptly during this period all such information and explanations requested by the Purchaser, and any person or other venture or acquiring any business carried on authorised by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than in the ordinary course in each case to any member of the Retained Group;
(p) grantingit, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any legal proceedings (except debt collection in the normal course of business);
(r) failing to take any action to maintain in force any of its insurance policies or doing anything to make any policy of insurance void or voidable or reducing the level of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securities;
(v) amending its articles of association or equivalent constitutional documents, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documents;
(w) making any change to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement);
(y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes;
(z) adopting or changing any method of Tax accounting;
(aa) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms of any of the Leases;
(hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases;
(ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts of the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation to the Properties;Business or the Assets.
(kk) forfeit 5.3 The Purchaser hereby undertakes and warrants that it will not prior to Completion, save as required by law or accept a surrender by the rules of any Lease; orsupervisory or regulatory body or securities exchange to which it is subject, divulge any confidential information relating to the Business obtained by it pursuant to this Agreement to any person other than its own officers, employees or professional advisers, provided that the Purchaser and UTi Worldwide may, without obtaining the prior consent of the other Parties, disclose the contents hereof or the matters contemplated herein to any person (including, but not limited to, the underwriters of UTi Worldwide's shares or their counsel) in respect of or in connection with the proposed registration and listing of the ordinary shares of UTi Worldwide on a stock exchange in the USA.
(ll) 5.4 The Vendors shall procure that the withdrawal or repaying Purchaser's interest is noted on all Insurances with effect from the Completion Date, and in the event of any monies from any rent deposit deeds held in relation to any loss or damage arising which is covered by such Insurance will take all steps within its power at the request and direction of the PropertiesPurchaser to recover from the insurers and, subject to Completion, account to the Purchaser for any payment received.
Appears in 1 contract
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers shall generally consult or procure the consultation of the Purchaser in relation 5.1 Subject to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 65.2, the Sellers Seller shall procure that from the date of this Agreement Execution Date until Completion Completion, each Group Company will will:
(a) conduct its business in the ordinary course Ordinary Course of Business and that, in substantially the same manner as in the absence of 24 months prior to the prior written consent of the Purchaser, no Group Company will do or agree to do anything which is not of a routine and unimportant nature including:
(a) entering into, modifying or terminating any material contract or any contract affecting a material part of its business or entering into any unusual or onerous contractExecution Date;
(b) disposing subject to the non-Affiliated parties to the JOA and any other non-Affiliated committee members providing their prior consent, permit the Purchasers, at the Purchaser’s sole cost to appoint an observer to operating committee meetings and technical committee meetings under a JOA, provided that any such meeting shall proceed irrespective of or granting any option whether such appointee is in respect of any material part of its assetsattendance;
(c) acquiring or disposing consult with the Purchasers with regard to the PSC Licence prior to any material decision in connection with the PSC Licence which is not in the Ordinary Course of any fixed asset having a book value in excess of twenty thousand pounds (£20,000)Business;
(d) making any capital commitment procure that each Purchaser is given reasonable access at reasonable times, on reasonable advance notice and at the Purchaser’s sole cost, to all material documents, material information and data reasonably requested by a Purchaser relating to all material facts, matters and things in excess respect of twenty thousand pounds the Group Companies and the Interest Documents;
(£20,000e) individually or which together conduct its affairs in relation to the PSC Licence materially in accordance with and in compliance with the Interest Documents (including taking all other such capital commitments entered into between reasonable steps to ensure that the PSC Licence is protected and maintained); and
(f) insure the Business and the assets of the Group Company and the PSC Licence and operations at the PSC Licence in the Ordinary Course of Business and substantially in the same manner and to the same extent as prior to the date of this Agreement and Completion exceeds twenty thousand pounds pay all premia thereon, provided that neither the Seller nor any Group Company shall be required to comply with paragraphs (£20,000b), (c) or (d) above, where (i) the Seller and/or a Purchaser has given notice that, in aggregateits reasonable opinion the Condition is unlikely to be satisfied on or before the Long Stop Date or (ii) the Seller reasonably believes that doing so would lead to the disclosure of any proprietary or commercially sensitive information relating to the Seller or any of its Affiliates (other than information relating solely to the Business).
5.2 Notwithstanding Clause 5.1, in the period between the Execution Date and Completion, except as may be required or permitted by this Agreement or as may be required by any applicable law or any Governmental or Regulatory Authority, the Seller shall not and shall procure that, no Group Company shall do any of the following without the prior written consent of each Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(a) declare, make or pay any dividend or other distribution, other than dividends or distributions to another Group Company or Permitted Dividends;
(b) sell or agree to sell the Shares or the Subsidiary Shares (in whole or in part) to a third party or accept any offer from a third party to purchase the Shares or the Subsidiary Shares (in whole or in part);
(c) create, allot or issue any shares in a Group Company, or give, create or enter into any option over shares in a Group Company, other than to another Group Company;
(d) create or grant, or agree to create or grant, any Encumbrance (other than Permitted Encumbrances) over the Shares or the Subsidiary Shares or over any material assets of a Group Company;
(e) making sell or agree to sell any material assets of a Group Company (in whole or in part);
(f) in respect of the Group Companies only, grant any guarantees or indemnities for the benefit of any person, other than in the Ordinary Course of Business;
(g) grant any loans by the Group Companies other than credit under usual terms or write off or release any debts;
(h) voluntarily surrender, withdraw from or abandon the PSC Licence (in whole or in part);
(i) amend (in any material respect), terminate or agree to amend or terminate any of the Interest Documents;
(j) amend, any Affiliate Contract in a manner that would cause Permitted Leakage arising from such Affiliate Contract to be materially increased;
(k) waive or agree to waive any of its rights or remedies under the Interest Documents in so far as such rights and remedies materially affect the PSC Licence;
(l) enter into any contract, agreement or arrangement which, once entered into, would be a Material Contract, or amend (in any material respect), terminate or agree to amend or terminate any such Material Contract, in any such case, other than in the Ordinary Course of Business;
(m) propose any scheme or plan of arrangement, reconstruction, amalgamation, merger or demerger in respect of the Group Companies;
(n) propose any winding-up or liquidation of the Group Companies;
(o) make any material change in the nature or organisation of its businessthe business of the Group Companies;
(fp) discontinuing or ceasing discontinue, cease to operate or wind up, or resolve to do any of the foregoing, as to all or a any material part of its businessthe business of the Group Companies;
(gq) making make any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more of a Group Company other than salary increases in the usual course and at normal market ratesof business;
(hr) appointingappoint, employing employ or offering offer to appoint or employ any person at a rate other than in the usual course of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregatebusiness;
(is) dismissing dismiss any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employmentother than in the usual course of business;
(jt) borrowing money incur or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement);
(k) granting any loan, advance or capital contribution to any other person;
(l) reducing its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest in any person or other venture or acquiring any business carried on by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying pay any management charge or making make any other payment otherwise than in the ordinary course in each case to any member of the Retained GroupGroup or their Representatives, other than, for the avoidance of doubt, payments of such fees to another Group Company and payments specified as Permitted Leakage or as Permitted Dividends;
(pu) grantinginstitute, modifying abandon or terminating settle any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any material legal proceedings (except debt collection in the normal course Ordinary Course of business);
(rBusiness) failing to take any action to maintain in force any of its insurance policies against or doing anything to otherwise involving a Group Company or make any policy admission of insurance void material liability by or voidable or reducing the level on behalf of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securitiesa Group Company;
(v) amending its articles make, revoke or amend any Tax election or, other than as expressly required to satisfy the Condition, settle or compromise any Tax liability or agree to an extension or waiver of association the limitation period to any Tax claim made by any Tax Authority or equivalent constitutional documents, adopting further articles grant any power of association attorney with respect to Taxes or passing resolutions which are inconsistent enter into any closing agreement with its articles of association or equivalent constitutional documentsrespect to any Tax;
(w) making change any change to the method of accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;for Tax purposes; or
(x) changing its residence for file any amended income Tax purposes making, changing return or revoking other material amended Tax return other than as expressly required to satisfy the Condition.
5.3 Clause 5.2 does not apply in respect of and shall not operate so as to restrict or prevent:
(a) any Tax election matter reasonably undertaken in an emergency or disaster situation with the intention of and to the extent only of those matters strictly required with a view to minimising any adverse effect of such situation (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided and of which the Purchasers will be promptly notified in this Agreementwriting);
(yb) settling the completion or compromising performance of any claimobligations undertaken pursuant to any agreement Disclosed prior to the date of this Agreement and which was entered into prior to the date of this Agreement.
(c) any matter expressly permitted by, noticeor necessary for performance of, audit report this Agreement (including, for the avoidance of doubt, the satisfaction of the Condition and the performance of Clause 5.6) or assessment in respect any of Taxesthe other Transaction Documents or necessary for Completion;
(zd) adopting or changing any method matter undertaken at the request of Tax accountingthe Purchaser (subject to the Seller being able to undertake such matter);
(aae) filing providing information to any amended Tax ReturnRegulatory Authority in the Ordinary Course of Business;
(bbf) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating matter to any Tax; surrendering any right to claim a Tax refundthe extent required by applicable law;
(ccg) consenting any Permitted Leakage.
5.4 It would be unreasonable for the Purchasers to any extension withhold their consent under Clause 5.2 if the consent being sought is reasonably necessary to maintain the present status or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance condition of any of the terms of any assets of the Leases;Group Companies in accordance with Good and Prudent Oilfield Practice and/or in order to comply with its obligations under the Interest Documents as Disclosed prior to the Execution Date.
5.5 The Seller and the Purchasers (each on behalf of the Subsidiary) shall use all reasonable endeavours and shall negotiate in good faith to agree as soon as reasonably practicable after the date of this Agreement, and in any event before Completion, the final form of the Transitional Services Agreement in accordance with the principles and agreed terms set out in Schedule 8 (Transitional Service Agreement Term Sheet). If upon Completion the Seller and the Purchasers (each on behalf of the Subsidiary) have not agreed the final form of the Transitional Services Agreement, and/or the parties thereto have not entered into the Transitional Services Agreement, the Seller shall procure that the Retained Group provides the relevant transitional services to the Subsidiary in accordance with the terms set out in the term sheet set out in Schedule 8.
5.6 No later than five (5) Business Days prior to the Completion Date, the Seller shall:
(hha) serve any notice irrevocably surrender one Share for zero consideration (whether contractualthe date of such surrender being the “Surrender Date”), common law or statutorysuch that on Completion the Company will have 35,000 shares with a par value of USD 1 each in issue; and
(b) on notify the tenant under any Purchasers that such surrender has taken place and provide to the Purchasers a certified copy of the Leases;
(ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts register of members of the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation to the Properties;
(kk) forfeit or accept a surrender of any Lease; or
(ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the Properties.Company evidencing such surrender,
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Kosmos Energy Ltd.)
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers shall generally consult or procure the consultation of the Purchaser in relation to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers shall procure that from 8.1 From the date of this Agreement until Completion each Group the Sellers shall comply with the provisions of Schedule 5.
8.2 The Sellers shall, and shall procure that the Company will conduct its business in will, on or before Completion enter into the ordinary course and thatSHA Termination Deed, in to be effective from Completion.
8.3 Without prejudice to the absence generality of the prior written consent of the PurchaserSellers’ obligations under Schedule 5, no Group Company will do or agree to do anything which is not of a routine and unimportant nature including:
(a) entering into, modifying or terminating any material contract or any contract affecting a material part of its business or entering into any unusual or onerous contract;
(b) disposing of or granting any option in respect of any material part of its assets;
(c) acquiring or disposing of any fixed asset having a book value in excess of twenty thousand pounds (£20,000);
(d) making any capital commitment in excess of twenty thousand pounds (£20,000) individually or which together with all other such capital commitments entered into between the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) the Sellers shall use best endeavours to procure that the Target Companies shall maintain in aggregate;
(e) making any force all insurance policies which are material change in the nature or organisation of its business;
(f) discontinuing or ceasing to operate all or a part of its business;
(g) making any variation to the Business materially on the same terms and conditions with a similar level of employment of any employee earning thirty thousand pounds (£30,000) per annum or more other than salary increases in the usual course and at normal market rates;
(h) appointing, employing or offering cover to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting that prevailing as at the date of this Agreement);.
8.4 The Sellers shall ensure that, prior to Completion:
(ka) granting any loanthe lease in respect of the premises of HKMAI TST at 0/X, advance or capital contribution XX Xxxxxxx Xxxxxx, 00 Xxxxxx Xxxx, Xxxx Xxx Xxxx, Xxxxxxx, as further described at item 14 of Table 2 in Schedule 12 (the “HKMAI TST Lease”), will have been renewed for a period of three years on terms satisfactory to any other person;the Purchaser and novated to HKMAI TST as tenant and change of control and business name of HKMAI TST resulting from the transactions contemplated hereunder will be obtained from the landlord ; and
(lb) reducing its share capital or purchasing or redeeming its own shares;consent to the change of control of NMC resulting from the transactions contemplated hereunder will be obtained from the landlord of the premises of NMC at 00/X Xxxxx, Xxxx Xxxxx Xxxxx X, Xx.000 Xxxxxx Xxxx, Kowloon (the “NMC Premises”), including with regard to the Consent Leases.
8.5 Prior to Completion, the Sellers shall procure that each Target Company will:
(ma) acquiring provide to the Purchaser (i) monthly management accounts (up to the month immediately preceding the Completion Date), audited annual financial statements, Tax Returns, Tax computations and monthly operational updates in relation to Staff movements and any share incidents or complaints involving patients, Staff or service providers of the Target Companies, or operational disruption; and (ii) copies of any material correspondence with a Governmental Authority, in each case within five Business Days after the date on which they are finalised (if internal) or provided to the relevant person, or where applicable, received from the Governmental Authority; provided that this Clause 8.5(a) shall not oblige the Sellers or the Target Companies to prepare any additional materials (other interest than the operational updates referred to in any person or other venture or acquiring any business carried on by any person;
(nthis paragraph) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than beyond those prepared in the ordinary course and consistent with past practice in the period prior to the date of this Agreement;
(b) provide reasonable cooperation, and allow the Purchaser and its respective agents, upon reasonable prior written notice (which may be by email), reasonable access to the management, systems and platforms of the Target Companies, provided that such access is in compliance with all Applicable Law, for the purposes of business and transition planning and preparation, including gap analysis of policies and procedures; and
(c) make available members of its senior management for a call (after receiving reasonable notice in advance) to update the Purchaser on the business performance of the Target Companies once per month.
8.6 Between the date hereof and Completion, to the extent permitted by Applicable Law, the Sellers shall provide to the Purchaser, and procure that the Target Companies report to any relevant insurer, in each case to any member of the Retained Group;
(p) grantingpromptly after they become available, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment details of any application, search, maintenance (i) new complaints against any registered medical practitioner of a Target Company lodged with the Medical Council of Hong Kong of which any Seller or other official fees;
(q) instituting or settling any legal proceedings (except debt collection in the normal course of business);
(r) failing to take any action to maintain in force any of its insurance policies or doing anything to make any policy of insurance void or voidable or reducing the level of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securities;
(v) amending its articles of association or equivalent constitutional documents, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documents;
(w) making any change to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement);
(y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes;
(z) adopting or changing any method of Tax accounting;
(aa) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which Target Company is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms of any of the Leases;
(hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases;
(ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts of the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation to the Properties;
(kk) forfeit or accept a surrender of any Lease; aware or
(ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the Properties.
Appears in 1 contract
Samples: Share Purchase Agreement
PRE-COMPLETION OBLIGATIONS. 6.1 8.1 The Sellers Vendors shall generally consult or procure the consultation of the Purchaser in relation (subject to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of express instructions from the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 6, the Sellers shall procure ) that from the date of this Agreement until Completion:
(a) the business of the Group is operated until Completion each in the same manner as it was operated hereto, in a prudent manner consistent with past practices, and in the usual and ordinary course, and the Vendors shall use their best efforts to preserve the goodwill of suppliers, customers, creditors and others having business relationships with the Group, and shall safeguard and preserve the confidentiality of all books, records and information relating to the Group Company will conduct in a prudent manner consistent with past practices;
(b) the Group's products are sold in regular quantities consistent with past prudent trade practices and to inform the Purchaser of the sales (both value and volume) of the Group on a weekly basis;
(c) the fixed assets of the Group are maintained in good condition, repair and working order, normal wear and tear excepted;
(d) the Vendors shall have in effect and maintain at all times all insurance now in force relating to the Group and the business and assets of the Group;
(e) the Vendors shall use their best efforts to preserve and keep the business organization of the Group intact, to keep available the services of the present officers and employees of the Company;
(f) the Vendors shall allow the Purchaser, its representatives, attorneys and accountants, to the extent necessary to determine the operations of the Group, to have reasonable access to and copies of the records and files, audits and properties of the Group relating to the Group, the business and assets of the Group, as well as all information relating to taxes, commitments, contracts, titles and financial conditions of, or otherwise pertaining to, the Group, by way of requests made through the Purchaser, the Purchaser's authorized representatives, the Company's officers or key employees, or the Purchaser's legal counsel. The Vendors agree to cause the Group's accountants to cooperate with the Purchaser and its accountants in making available all financial information concerning the Group as requested, and the Purchaser and its accountants shall have the right to examine all working papers pertaining to examinations of the Group relating to the Group and its business and assets, provided that such examinations shall not cause disruption to the Group and its business and work force, and in any event, shall be undertaken with reasonable prior notice and during normal business hours of the Group;
(g) the Vendors shall maintain and/or obtain all government authorizations and contractual and leasehold consents and permits necessary to enable the consummation of all transactions contemplated hereby or the continuation of the business of the Group;
(h) the Vendors shall pay when due all national, local and other taxes of the Group;
(i) the Vendors shall provide the Purchaser with (i) copies of any financial statements prepared by the Group in the ordinary course of its business, and (ii) cumulative and monthly management reports of the Group's business (including statements of revenues and expenses), promptly after they become available; and
(j) the Vendors shall notify the Purchaser immediately in the event of any damage to or destruction of any of the material assets of the Group;
8.2 The Vendors shall procure that, in from the absence date of this Agreement until Completion, no member of the Group shall, without the prior written consent of the Purchaser, no Group Company will do or agree to do anything which is not of a routine and unimportant nature including:
(a) entering into, modifying enter into or terminating vary any material contract or assume any contract affecting a material part liability which is outside the ordinary or proper course of its business or entering into any which is long term, unusual or onerous contractonerous;
(b) disposing enter into any capital commitment in a sum in excess of US$50,000 or granting any option its equivalent in respect local currency (whether by way of any material part of its assetspurchase, lease, hire purchase or otherwise);
(c) acquiring make any change in the nature, scope or disposing organisation of any fixed asset having its business or dispose of the whole of its undertaking or property or a book value in excess of twenty thousand pounds (£20,000)substantial part thereof;
(d) making acquire or form any capital commitment subsidiary or acquire any shares in excess of twenty thousand pounds (£20,000) individually any company or which together with all other such capital commitments entered into between acquire the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregate;
(e) making whole or any material change in the nature or organisation of its business;
(f) discontinuing or ceasing to operate all or a substantial part of its business;
(g) making any variation to the terms and conditions of employment undertaking assets or business of any employee earning thirty thousand pounds (£30,000) per annum other company or more other than salary increases in the usual course and at normal market rates;
(h) appointing, employing any firm or offering to appoint person or employ enter into any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually joint venture or which together partnership with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement);
(k) granting any loan, advance or capital contribution to any other person;
(le) reducing make any loans or grant any credit (other than credit given in the normal course of trading and advances made to employees against expenses incurred by them on its share capital or purchasing or redeeming its own sharesbehalf);
(mf) acquiring borrow any share money (except borrowings from its bankers not exceeding US$50,000 or other interest its equivalent in local currency) or make any person payments out of or other venture or acquiring any business carried drawings on by any person;
its bank accounts (n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than except routine payments in the ordinary course in each case to any member of the Retained Group;
(p) granting, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any legal proceedings (except debt collection in the normal course of business);
(rg) failing to take enter into any action to maintain in force guarantee, indemnity or surety or grant any security over any of its insurance policies assets or doing revenues;
(h) employ or engage, or make any offer of employment or engagement to, any employee or consultant earning in excess of US$5,000 (or its equivalent in local currency) per month, or make any changes (whether immediate, conditional or prospective) in the terms of employment (including, without limitation, in the amount or basis of the emoluments or benefits) of any of its employees or in any arrangements with its consultants;
(i) enter into any agreement, arrangement or understanding with any trade union, works council, staff association or other employee representative body in respect of any of the employees or directors of any member of the Group;
(j) acquire or dispose of or grant any option or right of pre-emption in respect of any material asset or any interest nor give nor receive any service otherwise than at market value, or enter into, issue, or grant any agreements, arrangements, warrants, calls, options, convertible rights or other rights (vested or contingent) to acquire any capital stock of the Group;
(k) acquire or dispose of any freehold or leasehold property or grant any lease or third party right in respect of any of the Properties or (subject to Clause 4.1(h) above) negotiate or agree to any review of rent in respect of any lease of any of the Properties;
(l) enter into any leasing, hire purchase agreement or any agreement or arrangement for payment on deferred terms;
(m) grant or enter into any licence, franchise or other agreement or arrangement concerning any part of its name, trading names or know-how;
(n) declare, make or pay any dividend or distribution on account of any of the Sale Shares or redeem, purchase or otherwise acquire any of the Sale Shares, or issue, sell or dispose of any option, warrant or right to acquire any shares of capital stock of the Group;
(o) incur or pay any management charges;
(p) permit any of its insurances to lapse or do anything to which would make any policy of insurance void or voidable voidable;
(q) make any payments to any of the Vendors or reducing parties related to, or associated with, the level of insurance cover providedVendors.
(r) apply for, surrender or agree any variations to any Environmental Licences;
(s) declaring, making make any change in the accounting practices or paying procedures governing any dividend or other distributionmember of the Group;
(t) creating, allotting amend the Articles of Incorporation or issuing any shares, loan capital By-Laws (or other securitiesconstitutive documents) of any member of the Group;
(u) creatinginitiate or enter into or cause the Group's officers, issuingdirectors, redeeming employees, agents and affiliates to initiate or granting enter into, any negotiations or solicit or discuss or encourage (and including by way of furnishing non-public information) any offer or proposal regarding the sale, direct or indirect, of any of the Sale Shares, the sale, direct or indirect, of any of the assets of any member of the Group (other than inventory in the ordinary course of business), the issuance of any capital stock of any member of the Group or any options, warrants, or rights to acquire capital stock of any member of the Group, or any merger, consolidation or similar transaction involving the Sale Shares or any of the assets of any member of the Group with any party other than the Purchaser or an affiliate of the Purchaser. The Vendors shall promptly notify the Purchaser of any such proposal or offer, or any inquiry or contact with any person with respect thereto, and terms thereof; or
(v) agree, conditionally or otherwise, to do any of the foregoing.
8.3 As from the date of this Agreement, the Vendors shall give and shall procure that the Purchaser and/or any persons authorised by it will be given such access to the premises and all books, title deeds, records and accounts of the BVI Companies, the Company and the Investee Companies as the Purchaser may reasonably request and be permitted to take copies of any such books, deeds, records and accounts and that the directors and employees of the BVI Companies, the Company and the Investee Companies shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them.
8.4 The Purchaser shall procure (subject to any express instructions from the Vendors) from the date of this Agreement until Completion:
(a) that the business of the Purchaser is operated until Completion in the same manner as it was operated hereto, in a prudent manner consistent with past practices, and in the usual and ordinary course, and the Purchaser shall use its best efforts to preserve the goodwill of suppliers, customers, creditors and others having business relationships with the Purchaser, and shall safeguard and preserve the confidentiality of all books, records and information relating to the Purchaser in a prudent manner consistent with past practices;
(b) the maintenance of all government authorizations and contractual and leasehold consents and permits necessary to enable the consummation of all transactions contemplated hereby or the continuation of the business of the Purchaser and Viko Technology, Inc.;
(c) the payment when due of all national, local and other taxes of the Purchaser or Viko Technology, Inc.;
(d) the notification to the Vendors immediately in the event of any damage to or destruction of any of the material assets of the Purchaser or Viko Technology, Inc.; and
(e) the notification to the Vendors immediately of any matter, event or circumstance (including any omission to act) which may arise or become known to it which has, or is likely to have, an adverse effect on the financial position or prospects of the Purchaser.
8.5 The Purchaser shall procure that, from the date of this Agreement until Completion, the Purchaser shall not, without the prior written consent of the Vendors:
(a) make any change in the nature, scope or organisation of its business or dispose of the whole of its undertaking or property or a substantial part thereof;
(b) acquire or form any subsidiary or acquire any shares in any company or acquire the whole or any substantial part of the undertaking assets or business of any other company or any firm or person or enter into any joint venture or partnership with any other person;
(c) acquire or dispose of or grant any option or right to subscribe of pre-emption in respect of any share material asset or loan capital any interest nor give nor receive any service otherwise than at market value, or enter into, issue, or grant any agreements, arrangements, warrants, calls, options, convertible rights or other securitiesrights (vested or contingent) to acquire any capital stock of the Purchaser or Viko Technology, Inc.;
(vd) amending its articles declare, make or pay any dividend or distribution or redeem, purchase or issue, sell or dispose of association any option, warrant or equivalent constitutional documentsright to acquire any shares of capital stock of the Purchaser or Viko Technology, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documentsInc.;
(we) making any change agree, conditionally or otherwise, to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement);
(y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes;
(z) adopting or changing any method of Tax accounting;
(aa) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of do any of the terms of any of the Leases;
(hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases;
(ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts of the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation to the Properties;
(kk) forfeit or accept a surrender of any Lease; or
(ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the Propertiesforegoing.
Appears in 1 contract
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers 5.1 Between the date hereof and the Completion Date, the Vendor shall generally consult or procure carry on the consultation Business in the usual and ordinary course consistent with prior practice so as to maintain the same as a going concern (using its best endeavours to preserve its assets, customer and supplier relations, employee relations, Goodwill, business and organisation) and shall ensure that without the prior written consent (not to be unreasonably withheld) of the Purchaser:
5.1.1 there will be no change, other than changes in the ordinary day-to-day course of business, in the assets or liabilities of the Business;
5.1.2 no contracts exceeding one month in duration or which could have a value or liability arising for the Vendor thereunder which could exceed Fifty Thousand United States Dollars (US$50,000) (or its monetary equivalent) for the sale of goods or provision of services relating to the Business, will be entered into;
5.1.3 no change will be made to the terms of employment of any of the Employees, no Employee will be dismissed (other than by summary dismissal pursuant to Section 9 of the Employment Ordinance) and no one will be hired for employment in the Business;
5.1.4 no changes in management policy of a significant nature will be instituted; and
5.1.5 no agreement, conditional or otherwise, to do any of the foregoing shall be made.
5.2 As from the date of this Agreement, the Vendor will ensure that the Purchaser and any person authorised by it shall be given such access to the premises from which the Business is carried on, managed or administered and to all the books, title deeds, records and accounts of the Business as the Purchaser may reasonably request and be permitted to take copies of any such books, deeds, records and accounts, provided always that all such copies shall be returned to the Vendor forthwith upon request in the event that Completion does not take place for any reason whatsoever. The Vendor will procure that its directors and employees provide the Purchaser promptly during this period all such information and explanations requested by the Purchaser, and any person authorised by it, in relation to the management of Business or the Properties and procure Assets.
5.3 The Purchaser hereby undertakes that reasonable written representations made it will not prior to Completion, save as required by law or by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing rules of any material noticesupervisory or regulatory body or securities exchange to which it is subject, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under divulge any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works confidential information relating to the Outstanding Construction ContractsBusiness obtained by it pursuant to this Clause 5 to any person other than its own officers, employees or professional advisers whose province it is to know the same.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 65.4 The Vendor hereby undertakes that, the Sellers shall procure that with effect from the date of this Agreement until Completion each Group Company and for a period of three months following Completion, it will conduct use its business in the ordinary course and that, in the absence of the prior written consent of best endeavours to provide (at the Purchaser, no Group Company will do or agree to do anything which is not 's sole cost and expense) such assistance and cooperation as the Purchaser may reasonably request for the purposes of a routine applying for and unimportant nature including:
(a) entering into, modifying or terminating obtaining any material contract or any contract affecting a material part of its business or entering into any unusual or onerous contract;
(b) disposing of or granting any option Environmental Licences required by the Purchaser in respect of any material part of its assets;
(c) acquiring or disposing of any fixed asset having a book value in excess of twenty thousand pounds (£20,000);
(d) making any capital commitment in excess of twenty thousand pounds (£20,000) individually or which together with all other such capital commitments entered into between the date of this Agreement and Completion exceeds twenty thousand pounds (£20,000) in aggregate;
(e) making any material change in the nature or organisation of its business;
(f) discontinuing or ceasing to operate all or a part of its business;
(g) making any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more other than salary increases in the usual course and at normal market rates;
(h) appointing, employing or offering to appoint or employ any person at a rate of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregate;
(i) dismissing any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employment;
(j) borrowing money or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement);
(k) granting any loan, advance or capital contribution to any other person;
(l) reducing its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest in any person or other venture or acquiring any business carried on by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying any management charge or making any other payment otherwise than in the ordinary course in each case to any member continued operation of the Retained Group;
(p) granting, modifying or terminating any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any legal proceedings (except debt collection in the normal course of business);
(r) failing to take any action to maintain in force any of its insurance policies or doing anything to make any policy of insurance void or voidable or reducing the level of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securities;
(v) amending its articles of association or equivalent constitutional documents, adopting further articles of association or passing resolutions which are inconsistent with its articles of association or equivalent constitutional documents;
(w) making any change to the accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;
(x) changing its residence for Tax purposes making, changing or revoking any Tax election (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided in this Agreement);
(y) settling or compromising any claim, notice, audit report or assessment in respect of Taxes;
(z) adopting or changing any method of Tax accounting;
(aa) filing any amended Tax Return;
(bb) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms of any of the Leases;
(hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases;
(ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts of the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation to the Properties;
(kk) forfeit or accept a surrender of any Lease; or
(ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the PropertiesBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (Flextronics International LTD)
PRE-COMPLETION OBLIGATIONS. 6.1 The Sellers shall generally consult or procure the consultation of the Purchaser in relation 5.1 Subject to the management of the Properties and procure that reasonable written representations made by the Purchaser in respect thereof are taken into account.
6.2 The Sellers shall pending Completion use reasonable endeavours to procure collection of all sums payable pursuant to the Leases and shall keep the Purchaser informed of the steps taken to recover such sums provided that the Sellers shall not commence any insolvency and/or forfeiture proceedings without the consent of the Purchaser.
6.3 The Sellers shall promptly notify the Purchaser in writing of any material notice, application, registration or other communication which the Sellers may give to or receive from, or have with the tenant under any of the Leases which shall include not less than 72 hours prior notice of the date and time upon which the Employer’s Agent intends to inspect the relevant works procured pursuant to the relevant Outstanding Construction Contracts with a view to the issue of a certificate of practical completion pursuant to their terms. The Purchaser and its representatives shall be invited to accompany the Employer’s Agent on every inspection of the works relating to the Outstanding Construction Contracts.
6.4 Without prejudice to the generality of Clause 5.1 or the foregoing of this Clause 65.2, the Sellers Seller shall procure that from the date of this Agreement Execution Date until Completion Completion, each Group Company will will:
(a) conduct its business in the ordinary course Ordinary Course of Business and that, in substantially the same manner as in the absence of 24 months prior to the prior written consent of the Purchaser, no Group Company will do or agree to do anything which is not of a routine and unimportant nature including:
(a) entering into, modifying or terminating any material contract or any contract affecting a material part of its business or entering into any unusual or onerous contractExecution Date;
(b) disposing subject to the non-Affiliated parties to the JOA and any other non-Affiliated committee members providing their prior consent, permit the Purchasers, at the Purchaser’s sole cost to appoint an observer to operating committee meetings and technical committee meetings under a JOA, provided that any such meeting shall proceed irrespective of or granting any option whether such appointee is in respect of any material part of its assetsattendance;
(c) acquiring or disposing consult with the Purchasers with regard to the PSC Licence prior to any material decision in connection with the PSC Licence which is not in the Ordinary Course of any fixed asset having a book value in excess of twenty thousand pounds (£20,000)Business;
(d) making any capital commitment procure that each Purchaser is given reasonable access at reasonable times, on reasonable advance notice and at the Purchaser’s sole cost, to all material documents, material information and data reasonably requested by a Purchaser relating to all material facts, matters and things in excess respect of twenty thousand pounds the Group Companies and the Interest Documents;
(£20,000e) individually or which together conduct its affairs in relation to the PSC Licence materially in accordance with and in compliance with the Interest Documents (including taking all other such capital commitments entered into between reasonable steps to ensure that the PSC Licence is protected and maintained); and
(f) insure the Business and the assets of the Group Company and the PSC Licence and operations at the PSC Licence in the Ordinary Course of Business and substantially in the same manner and to the same extent as prior to the date of this Agreement and Completion exceeds twenty thousand pounds pay all premia thereon, provided that neither the Seller nor any Group Company shall be required to comply with paragraphs (£20,000b), (c) or (d) above, where (i) the Seller and/or a Purchaser has given notice that, in aggregateits reasonable opinion the Condition is unlikely to be satisfied on or before the Long Stop Date or (ii) the Seller reasonably believes that doing so would lead to the disclosure of any proprietary or commercially sensitive information relating to the Seller or any of its Affiliates (other than information relating solely to the Business).
5.2 Notwithstanding Clause 5.1, in the period between the Execution Date and Completion, except as may be required or permitted by this Agreement or as may be required by any applicable law or any Governmental or Regulatory Authority, the Seller shall not and shall procure that, no Group Company shall do any of the following without the prior written consent of each Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(a) declare, make or pay any dividend or other distribution, other than dividends or distributions to another Group Company or Permitted Dividends;
(b) sell or agree to sell the Shares or the Subsidiary Shares (in whole or in part) to a third party or accept any offer from a third party to purchase the Shares or the Subsidiary Shares (in whole or in part);
(c) create, allot or issue any shares in a Group Company, or give, create or enter into any option over shares in a Group Company, other than to another Group Company;
(d) create or grant, or agree to create or grant, any Encumbrance (other than Permitted Encumbrances) over the Shares or the Subsidiary Shares or over any material assets of a Group Company;
(e) making sell or agree to sell any material assets of a Group Company (in whole or in part);
(f) in respect of the Group Companies only, grant any guarantees or indemnities for the benefit of any person, other than in the Ordinary Course of Business;
(g) grant any loans by the Group Companies other than credit under usual terms or write off or release any debts;
(h) voluntarily surrender, withdraw from or abandon the PSC Licence (in whole or in part);
(i) amend (in any material respect), terminate or agree to amend or terminate any of the Interest Documents;
(j) amend, any Affiliate Contract in a manner that would cause Permitted Leakage arising from such Affiliate Contract to be materially increased;
(k) waive or agree to waive any of its rights or remedies under the Interest Documents in so far as such rights and remedies materially affect the PSC Licence;
(l) enter into any contract, agreement or arrangement which, once entered into, would be a Material Contract, or amend (in any material respect), terminate or agree to amend or terminate any such Material Contract, in any such case, other than in the Ordinary Course of Business;
(m) propose any scheme or plan of arrangement, reconstruction, amalgamation, merger or demerger in respect of the Group Companies;
(n) propose any winding-up or liquidation of the Group Companies;
(o) make any material change in the nature or organisation of its businessthe business of the Group Companies;
(fp) discontinuing or ceasing discontinue, cease to operate or wind up, or resolve to do any of the foregoing, as to all or a any material part of its businessthe business of the Group Companies;
(gq) making make any variation to the terms and conditions of employment of any employee earning thirty thousand pounds (£30,000) per annum or more of a Group Company other than salary increases in the usual course and at normal market ratesof business;
(hr) appointingappoint, employing employ or offering offer to appoint or employ any person at a rate other than in the usual course of remuneration per annum in excess of thirty thousand pounds (£30,000) individually or which together with all other such appointments or offers made between the date of this Agreement and Completion exceeds thirty thousand pounds (£30,000) in aggregatebusiness;
(is) dismissing dismiss any employee earning thirty thousand pounds (£30,000) per annum or more or, directly or indirectly, inducing or attempting to induce any employee to terminate his employmentother than in the usual course of business;
(jt) borrowing money incur or incurring any indebtedness otherwise than in the ordinary and usual course of business (and within limits subsisting at the date of this Agreement);
(k) granting any loan, advance or capital contribution to any other person;
(l) reducing its share capital or purchasing or redeeming its own shares;
(m) acquiring any share or other interest in any person or other venture or acquiring any business carried on by any person;
(n) creating any Encumbrance or redeeming or releasing any Encumbrance or giving any guarantees or indemnities;
(o) incurring or paying pay any management charge or making make any other payment otherwise than in the ordinary course in each case to any member of the Retained GroupGroup or their Representatives, other than, for the avoidance of doubt, payments of such fees to another Group Company and payments specified as Permitted Leakage or as Permitted Dividends;
(pu) grantinginstitute, modifying abandon or terminating settle any rights or entering into any agreement relating to Intellectual Property or doing or omitting to do anything to jeopardise the validity or enforceability of the Intellectual Property, including the non-payment of any application, search, maintenance or other official fees;
(q) instituting or settling any material legal proceedings (except debt collection in the normal course Ordinary Course of business);
(rBusiness) failing to take any action to maintain in force any of its insurance policies against or doing anything to otherwise involving a Group Company or make any policy admission of insurance void material liability by or voidable or reducing the level on behalf of insurance cover provided;
(s) declaring, making or paying any dividend or other distribution;
(t) creating, allotting or issuing any shares, loan capital or other securities;
(u) creating, issuing, redeeming or granting any option or right to subscribe in respect of any share or loan capital or other securitiesa Group Company;
(v) amending its articles make, revoke or amend any Tax election or, other than as expressly required to satisfy the Condition, settle or compromise any Tax liability or agree to an extension or waiver of association the limitation period to any Tax claim made by any Tax Authority or equivalent constitutional documents, adopting further articles grant any power of association attorney with respect to Taxes or passing resolutions which are inconsistent enter into any closing agreement with its articles of association or equivalent constitutional documentsrespect to any Tax;
(w) making change any change to the method of accounting procedures, policies or treatment by reference to which its accounts or other financial statements are prepared;for Tax purposes; or
(x) changing its residence for file any amended income Tax purposes making, changing return or revoking other material amended Tax return other than as expressly required to satisfy the Condition.
5.3 Clause 5.2 does not apply in respect of and shall not operate so as to restrict or prevent:
(a) any Tax election matter reasonably undertaken in an emergency or disaster situation with the intention of and to the extent only of those matters strictly required with a view to minimising any adverse effect of such situation (including an entity classification election pursuant to Treasury Regulations Section 301.7701-3, except as otherwise provided and of which the Purchasers will be promptly notified in this Agreementwriting);
(yb) settling the completion or compromising performance of any claimobligations undertaken pursuant to any agreement Disclosed prior to the date of this Agreement and which was entered into prior to the date of this Agreement.
(c) any matter expressly permitted by, noticeor necessary for performance of, audit report this Agreement (including, for the avoidance of doubt, the satisfaction of the Condition and the performance of Clause 5.6) or assessment in respect any of Taxesthe other Transaction Documents or necessary for Completion;
(zd) adopting or changing any method matter undertaken at the request of Tax accountingthe Purchaser (subject to the Seller being able to undertake such matter);
(aae) filing providing information to any amended Tax ReturnRegulatory Authority in the Ordinary Course of Business;
(bbf) entering into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, advance pricing agreement or closing agreement relating to any Tax; surrendering any right to claim a Tax refund;
(cc) consenting to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
(dd) changing its accounting reference date;
(ee) making any Tax election or settling or compromising any liability to Tax or submitting any Tax return which is inconsistent with past practice or incurring any liability for Tax other than in the ordinary and usual course of business;
(ff) passing any resolutions in general meeting or by way of written resolution;
(gg) vary, or waive performance or observance, or agree to vary or to waive performance or observance of any of the terms of any of the Leases;
(hh) serve any notice (whether contractual, common law or statutory) on the tenant under any of the Leases;
(ii) grant or enter into any agreement or grant any lease licence or other right to occupy any party or parts of the Properties, save with respect to any Outstanding Agreements for Lease;
(jj) grant any right easement licence in relation matter to the Propertiesextent required by applicable law;
(kk) forfeit or accept a surrender of any Lease; or
(ll) the withdrawal or repaying of any monies from any rent deposit deeds held in relation to any of the Properties.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement
