PRE-CLOSING UNDERTAKINGS Clause Samples
The Pre-Closing Undertakings clause sets out the obligations and actions that parties must fulfill between signing a contract and the formal closing of a transaction. Typically, this includes requirements for the seller to operate the business in the ordinary course, refrain from making significant changes, and provide access to information or cooperation needed for closing. By clearly defining these interim responsibilities, the clause helps ensure that the business remains stable and that both parties are prepared for a smooth and predictable closing process.
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PRE-CLOSING UNDERTAKINGS. 6.1 From 31 January 2015 until Closing, each Seller shall (unless otherwise required or permitted by the terms of any Transaction Document), by applicable Law, or by any Governmental Entity or as part of the Carve-outs or Add-ons or in connection with the implementation of the Merger or as Fairly Disclosed in folders 5.1.24, 10.3.2 and 10.3.3 of the “Global” exchange of Data Room or as may be approved by the Foreign Purchaser (who shall be entitled to act for the Purchasers for such purpose), such approval not to be unreasonably withheld or delayed) ensure (so far as it is able) that the business of the Group Companies in which it owns an interest is carried on in all material respects only in the ordinary course of business and that:
(a) subject to clause 21 and to applicable Law, the Purchasers’ representatives shall be allowed such access as is reasonably requested, upon reasonable notice and at reasonable times, locations and intervals, to (i) the books and records of such Group Companies (including all statutory and minute books) and (ii) the premises used by, and management of, such Group Companies;
(b) no such Group Company declares or pays any dividend or other distribution (whether in cash, stock or in kind) or reduces its paid-up share capital, save to another Group Company;
(c) no such Group Company issues or agrees to issue or allots any share capital (except to another Group Company);
(d) no such Group Company modifies its by-laws or other equivalent organisational document;
(e) no such Group Companies makes any change in the accounting methods or practices other than in the ordinary course of business (other than such changes required by applicable local accounting principles);
(f) all transactions between any such Group Company and any member of its Seller Group (other than another Group Company) take place (i) pursuant to the terms of existing agreements between Group Companies and such member of its Seller Group as disclosed in the Data Room, or (ii) in a manner and on terms consistent with previous practice in the 12 months prior to 31 January 2015;
(g) no such Group Company sells or acquires, or agrees to sell or acquire, any business that is material to it;
(h) no such Group Company: (i) employs or agrees to employ any new persons, full or part time, in a Senior Manager capacity (other than to fill a vacancy) or (ii) make changes (other than those required by Law) in terms of employment (including pension fund commitments) in each case ...
PRE-CLOSING UNDERTAKINGS. 5.01. The PARTIES undertake, as soon as possible after the execution of this AGREEMENT and in any event prior to the CLOSING DATE, as follows:
a. SELLERS shall deliver to BUYER the PRE-CLOSING FINANCIAL STATEMENTS provided for by Article 7.02. hereinafter;
b. the PARTIES shall split any fees and expenses that the lending banks may charge in connection with the CONFIRMATION LETTER as follows:
(i) 50% (fifty per cent) to the BUYER
(ii) 50% (fifty per cent) to the SELLERS to be further split as follows: - 70% (seventy per cent) to VOLTEO; - 20% (twenty per cent) to AGRIHOLDING; - 10% (ten per cent) to OVERLAND.
5.02. The BUYER, as soon as possible after the execution of this Agreement and in any event prior to the CLOSING DATE, shall reasonably cooperate in good faith where requested and where possible in order to obtain the CONFIRMATION LETTER from the bank.
PRE-CLOSING UNDERTAKINGS. Between the date of this Agreement and the Closing Date, each of the Group Company Parties, Haode Investment, and the Founder Parties jointly and severally undertakes to the Investors to procure that each Group Company shall operate its business in the ordinary course so as to maintain that business as a going concern, and not to take actions or engage in or commit to transactions that are extraordinary in nature or would reasonably be expected to negatively impact the interest of a potential investor at or after the Closing.
PRE-CLOSING UNDERTAKINGS.
4.1 Pending Closing, the Seller (to the extent lawfully permitted and that the directors of the Target will not breach their own fiduciary duties) shall use all reasonable efforts to make sure that, the business of the Target be conducted in the ordinary course of business. The Seller shall use reasonable efforts to preserve the structural integrity of the Target and maintain its material existing relationships with customers, suppliers, creditors, business partners and other persons having business contacts with them so that on the Closing Date their business continuity will not be damaged. Without limiting the above, the Seller shall procure that the Target complies with the remaining provisions of this clause 4.
4.2 No dividend or other distribution shall be declared, paid or made by the Target without prior written consent of the Purchaser, except for the Pre-Closing Dividend.
4.3 No amendments shall be made to any Constitutional Documents of the Target without the prior written consent of the Purchaser.
4.4 The Target shall not grant any consent or waiver in relation to any reserved matters (however described) pursuant to any shareholders’ agreement, joint venture agreement or articles or association that are applicable to the Target without prior written consent of the Purchaser.
4.5 The Target shall not enter into any contract (whether in relation to a disposal, acquisition or otherwise) or commitment with a value exceeding US$5,000,000 without prior written consent of the Purchaser.
4.6 The Target shall not increase the emoluments of any employee other than in accordance with the normal practice of the Target without prior written consent of the Purchaser.
4.7 The Target shall not transfer or surrender any asset to, or assume, indemnify or incur any liability, for the benefit of the Seller or any member of the Seller Group without prior written consent of the Purchaser.
4.8 The Target shall not pass any directors’ resolution or any shareholders’ resolution in relation to any winding-up of the Target without prior written consent of the Purchaser.
4.9 The Target shall not create, allot or issue any shares, loan capital, securities convertible into shares of the Target or any option or right to subscribe in respect of any shares of the Target, loan capital or share option or subscription right related with securities convertible into shares of the Target without prior written consent of the Purchaser.
4.10 Except (a) the Proposed Transactions or (b...
PRE-CLOSING UNDERTAKINGS. (a) Southern Gas and the Southern Gas Group Equity Owners undertakes prior to the Closing Date to provide the notice required to be given to _____________ in connection with its preference right to acquire [an interest in certain of the Properties or _____] in accordance with any of the Southern Gas Group's Organizational Documents or Russian law, by no later than two days after execution of this Agreement. Southern Gas will consult with the Buyer concerning the form of notice to be sent to ___ before transmission of the notice to ___.]
(b) AUGI undertakes to apply for the required approval of the Federal Anti-Monopoly Service of the Russian Federation in connection with its acquisition of the Southern Gas Group Equity and the Assets no later than 14 days after execution of this Agreement, and Southern Gas and the Southern Gas Group Equity Owners each agrees to cooperate in providing such documents and other materials as may be necessary in connection with this application.
PRE-CLOSING UNDERTAKINGS. During the period from the date of this Agreement to Closing, the Seller shall perform its obligations set out in Schedule 5 (Conduct of the Target Companies Pre-Closing).
PRE-CLOSING UNDERTAKINGS.
8.1 From the date of this Agreement until Closing, in order to preserve the value of the Target Companies, the Seller, as the sole shareholder of the Holding Target Companies, shall (unless otherwise required or expressly contemplated by the terms of this Agreement, by applicable Law, or by any Governmental Entity or as fairly disclosed in the Data Rooms (including identified in the Locked Box Accounts) or as may be approved in writing by the Purchasers, such approval not to be unreasonably withheld, conditioned or delayed) procure that, to the extent permissible by applicable Law, the business of the Nigerian Target Company is operated in the ordinary course of business (in the manner conducted as at the date of the Agreement) and consistent with past practice, and in particular, that the Nigerian Target Company shall not:
(a) materially change its accounting methods, payment terms and practices (including with respect to debtors or payment of creditors) in place within the 18-month period preceding Closing;
(b) materially modify its Constitutional Documents;
(c) sell or acquire (or undertake to sell or acquire) any assets, businesses or undertakings with a value or consideration in excess of USD 2,000,000 unless contained in the Nigerian Target Company’s applicable business plan or budget;
(d) assume or incur any liability, obligation or expense for any amount in excess of USD 5,000,000;
(e) enter into any contract, liability or commitment, which is incapable of being terminated within 12 months or which could involve annual expenditure or liability, which exceeds (or could reasonably be expected to exceed) USD 5,000,000;
(f) repay, acquire, redeem or create any borrowings or other indebtedness in each case in any amount, which exceeds (in the aggregate) USD 10,000,000;
(g) make any advance or loan or cancel, release or assign any indebtedness owed to it in each case, in any amount, which exceeds (in the aggregate) USD 5,000,000;
(h) terminate or give notice to terminate any lease or licence applicable to any property held, used or occupied by it, which would or could reasonably be expected to have a material impact on its ability to maintain and carry on its operations as carried on as at the date of this Agreement;
(i) modify or terminate any material rights under any contracts which are material to the continued operation of its businesses;
(j) initiate, settle or abandon any claim, litigation, arbitration or contested tax liability where the amount...
PRE-CLOSING UNDERTAKINGS. 4.1 From the Offer Date until Closing, the Seller shall procure or shall have procured (except as may be approved by the Purchaser in writing and other than with respect to the Permitted Actions) that the Acquired Businesses are carried on in all material respects only in the ordinary course and shall comply with the obligations set out in Schedule 7.
4.2 Other than in the circumstance in which the MAC Condition is the only Condition that has not been satisfied, if Closing does not take place because this Agreement has been terminated in accordance with clause 3.12, the Purchaser shall, not later than two Business Days after such termination, and without prejudice to any other remedies which the Seller may have under this Agreement in relation to any other matter, pay to the Seller an amount of €25,000,000.
4.3 From the Offer Date until Closing, the Seller shall co-operate with the Purchaser in developing the integration programme as outlined in Annex 3 to the Offer Letter to facilitate the orderly transfer of the Acquired Businesses to the Purchaser (including the migration and transfer of all Business Information, and communicating with customers, suppliers and clients of the Acquired Businesses).
PRE-CLOSING UNDERTAKINGS. 6.1.1 Each of the Company and the Investor undertakes to the Optionholder that, between the date of this Agreement and the expiry of the Option Term (or, if earlier, Closing), each Group Company shall carry on its business as a going concern in the ordinary and usual course consistent with past practice and policies as carried on prior to the date of this Agreement, save insofar as agreed in writing by the Optionholder.
PRE-CLOSING UNDERTAKINGS. 8.1 During the period between the date of this Agreement and the Closing Date, the Shareholders, so far as they are able, shall ensure that each of the Companies will:
8.1.1 Operate its business in the ordinary course in accordance with its business plans, budgets, all applicable legal and administrative requirements so as to maintain it as a going concern, and not do anything which is out of the ordinary course consistent with past practice without the prior written consent of the Investor; and
8.1.2 Take all reasonable steps to preserve and protect its business and assets, and not, without the prior written consent of the Investor, acquire or dispose of or transfer an asset, incur a liability, obligation or expense, other than in the ordinary course of business in accordance with past practice and on normal arm’s length terms.
8.2 To the extent permitted by applicable law, the Shareholders also agree to ensure that:
8.2.1 Each of the Companies cooperates with any reasonable requests by the Investor for information about the business, the assets and the ongoing affairs of such company; and
8.2.2 The Investor is given reasonable access during ordinary business hours to the legal and financial advisors and auditors, documents and premises of the Companies to the extent reasonably requested by the Investor or its advisors in preparation for Closing, provided, however, that such access shall not unreasonably interfere with the business and operations of the Companies.