PRE-COMPLETION. 5.1 Until Completion, the Buyer and the Seller shall cooperate in good faith in relation to, so far as permissible by applicable Law and without causing material interruption to the business and operations of the Group: (a) the provision to the Buyer of documents and information in relation to the Group as may be reasonably requested by the Buyer; and (b) the arrangement of discussions between the Buyer and such senior employees and officers of the Group as the Buyer may reasonably request in relation to the affairs, finances and accounts of the Group, provided always that any information provided to the Buyer pursuant to this Clause 5.7 shall constitute the Seller's Confidential Information for the purposes of Clause 15 until Completion. 5.2 Until Completion, the Seller shall ensure that the 'check the box' Tax election status for all Group Companies is made available to the Buyer promptly upon request. 5.3 Promptly upon request of the Buyer (provided that the Buyer has first consulted with the Seller in relation to such request and taken account of any request made by the Seller for a short delay on the basis that it has reasonable grounds to believe that the authorisation will be received within 5 Business Days), the Seller shall procure that the pending application for FCA authorisation in relation to Globe Underwriting Limited is withdrawn, and shall provide written evidence in a form satisfactory to the Buyer that such withdrawal has taken place. 5.4 The Seller shall procure that Ed Broking LLP will provide TIRA with an updated List of Shareholders (reflecting the changes to the List of Shareholders that will take place on Completion) no later than one calendar month in advance of Completion. The Buyer will provide to the Seller and Ed Broking LLP all reasonable assistance necessary to prepare the updated List of Shareholders. 5.5 Until Completion, the Seller shall promptly inform the Buyer if it or any Group Company receives notice of, or if the Seller otherwise becomes aware of, any Regulatory Action. 5.6 Until Completion, the Seller shall use its reasonable endeavours to procure that: (a) the relevant Group Company has obtained the prior written unconditional consent to the Transaction from the relevant counterparties to the Change of Control Leases; and (b) Ed Broking LLP has obtained the prior written unconditional waiver by Palm Insurance Canada Inc. under the Palm Insurance Loan Agreement in relation to the proposed Change of Control (as that term is defined in the Palm Insurance Loan Agreement) of Ed Broking LLP in connection with the Transaction provided that (i) approaching Palm Insurance Canada Inc. to request such consent would not be otherwise prejudicial to Ed Broking LLP’s interests under the Palm Insurance Loan Agreement, and (ii) Ed Broking has not already renegotiated the terms of Palm Insurance Loan Agreement removing the relevant change of control provision, and the Seller shall keep the Buyer reasonably informed in a timely manner in relation to its progress in obtaining the consents referred to in this Clause 5.6. 5.7 Until Completion, the Seller shall procure that: 11/66881024_3419 (a) the business of each Group Company is carried on in material compliance with Laws applicable to the Group Companies and in substantially the same manner as its businesses have been carried on during the 12 month period prior to the date of this Agreement; and (b) no Group Company shall do any of the things specified in Schedule 2 (Reserved Matters ), or give any binding undertaking to do any such things. 5.8 Nothing in Clause 5 shall impose any obligation on the Seller to prevent or restrict any Group Company from doing or omitting to do anything: (a) required for the performance of any contract entered into prior to the date of this Agreement; (b) required in order to comply with any applicable Law or as required by any Authority; (c) with the written consent (not to be unreasonably withheld, conditioned or delayed, and to be deemed to have been given if the Buyer does not reply promptly to a request which the Seller has made clear relates to a matter which requires it to take immediate or prompt steps having regard to the expected consequences, provided such request is made in accordance with Clause 29 (Communications) and also made in writing by email to ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇, or at the written request of, the Buyer; or (d) required by any Transaction Document. 5.9 The Seller shall notify the Buyer as soon as reasonably practicable following the Seller becoming aware of any breach of Clause 5.7 by the Seller.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Share Capital (BGC Partners, Inc.)
PRE-COMPLETION. 5.1 Until CompletionNew Debt Financing
6.1 Without prejudice to the Purchaser's obligations to fund the Completion Amount, in the Buyer and period prior to Completion the Seller shall cooperate use reasonable best efforts to, and shall cause its Affiliates and their personnel and representatives (including legal and accounting representatives) to use reasonable best efforts to, procure that, to the extent reasonably necessary or customary, enable the Purchaser to comply with its obligations under this Agreement to satisfy the remaining conditions precedent to closing set out in good faith the New Finance Documents, or the arrangement of any (additional) financing by the Purchaser in relation to, so far as permissible by applicable Law and without causing material interruption to the business transactions contemplated by this Agreement, including putting in place liquidity support arrangements for the Target Group Companies replacing the IHC (the "New Debt Financing"), by providing the Purchaser and operations of its Representatives, at the GroupPurchaser's cost and expense:
(a) the provision reasonable access to the Buyer senior management team of the Target Group Companies, with appropriate seniority and expertise, at reasonable times and upon reasonable notice, to assist in preparation for and participate in a reasonable number of management and other meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and buyers of, the New Debt Financing), due diligence sessions, drafting sessions, road shows or rating agency presentations in connection with the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing, as well as access to the properties and the books and records of the Target Group Companies at such times during normal business hours on any Business Day as may be convenient to the Seller;
(b) provision of such information regarding the businesses and affairs of the Target Group Companies as is readily available and which the Purchaser may reasonably require in order to comply with its obligations under this Agreement or as may be reasonably necessary or customary in connection with New Finance Documents and the arrangement of any New Debt Financing, including:
(i) (1) furnishing the Purchaser and the New Debt Financing Sources as promptly as practicable with (A) the audited combined balance sheets and related statements of income and cash flows of the Business for the year ending 31 December 2021 and if the Completion Date is after 31 March 2023, 31 December 2022 (the "Annual Financial Statements"), prepared at the Purchaser's expense (provided that the Seller will keep the Purchaser reasonably informed of such expenses), accompanied by the audit report thereon of KPMG, and (B) unaudited combined balance sheets and related statements of income and cash flows of the Business for any subsequent financial quarter and the portion of the fiscal year through the end of such quarter to end at least forty-five (45) days prior to the Completion Date, together with all related notes and schedules thereto, prepared at the Purchaser's own expense (the "Interim Financial Statements"), reviewed by KPMG, as provided in AU-C-930 under the standards of the AICPA, and in the case of clauses (A) and (B) prepared in accordance with IFRS or GAAP and in compliance with Regulation S-X, (2) furnishing the Purchaser and the New Debt Financing Sources, at the Purchaser's expense, as promptly as practicable with all other readily available financial information (including drafts of the Annual Financial Statements and Interim Financial Statements) relating to the Business and reasonably necessary to allow the Purchaser to prepare pro forma financial statements (including for the most recent four fiscal quarter period ended at least forty-five (45) days prior to the Completion Date) in accordance with IFRS or GAAP and Regulation S-X, in each case to the extent the same is of the type and form required to be included in a prospectus for an offering of securities by the Purchaser registered under the Securities Act, or otherwise reasonably necessary to receive from the independent auditors of the Seller (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in such prospectus) customary "comfort" (including "negative assurance" comfort) with respect to the financial information of the Business to be included in such prospectus (for the avoidance of doubt such "comfort" from the independent auditors of the Seller being limited to the Annual Financial Statements and the Interim Financial Statements or information derived therefrom), and (3) using reasonable best efforts to cause KPMG to furnish consents for use of their audit report concerning the Annual Financial Statements in any customary materials relating to the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing (the authorization letters referred to below, the draft comfort letters referred to below and all information specified in this sub-clause (i), the "Required Information");
(ii) customary and readily available information to the extent requested by the Purchaser and the New Debt Financing Sources to prepare customary prospectuses, lender presentations, roadshow presentations or memoranda, private placement memoranda, bridge teasers, syndication memoranda, bank information memoranda and similar documents and rating agency presentations reasonably required in connection with the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing, including providing records, data or other information in relation readily available and reasonably necessary to support any statistical information or claims relating to the Business appearing in the aforementioned materials and allowing the Purchaser to prepare any financial projections which are conditions to the availability of the New Debt Financing and rating agency presentations;
(iii) disclosing customary information (by posting such information on Debtdomain, IntraLinks, SyndTrak Online or similar electronic means) identified by the Purchaser relating to the Business or the Target Group Companies for purposes of permitting such information to be included in marketing materials or memoranda for the New Debt Financing (or any debt being issued in lieu of all or a portion of the New Debt Financing) to be provided to potential investors who do not wish to receive material non-public information with respect to the Seller and its Affiliates;
(iv) using reasonable best efforts to cause the independent auditors of the Seller to furnish the Purchaser and the New Debt Financing Sources promptly with drafts of customary comfort letters that the independent auditors of the Seller (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in such offering memorandum) are prepared to deliver upon "pricing" of any debt being issued in lieu of all or a portion of the New Debt Financing and to cause such independent auditors to deliver such comfort letters upon the "pricing" of any such debt securities;
(v) executing and delivering the definitive agreements with respect to the New Debt Financing commitments (such definitive agreements being referred to as the "New Debt Financing Agreements") and any other credit agreements, indentures, notes, guarantees, pledge and security documents, including blocked account and control arrangements, hedging arrangements, other definitive financing documents and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by the BuyerPurchaser or the New Debt Financing Sources, in each case to the extent (i) such documents are required to be delivered in connection with the authorization of the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing and the New Debt Financing Agreements and the execution and delivery of the New Debt Financing Agreements in anticipation of Completion, (ii) such documents are subject to Completion occurring or only with effect from Completion and (iii) do not result in any costs or Liabilities for any member of the Seller's Group;
(vi) promptly, and in any event no later than three (3) Business Days prior to Completion, providing all available documentation and information that any lender, provider or arranger of any New Debt Financing or trustee for the debt securities has reasonably requested at least ten (10) Business Days prior to the Completion Date in connection with such New Debt Financing or debt securities under applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act; and
(bvii) delivering such other information as reasonably requested by the arrangement Purchaser or the New Debt Financing Sources required for the satisfaction on a timely basis of discussions between all the Buyer conditions precedent to the New Debt Financing; and
(c) all reasonable cooperation including:
(i) taking reasonable steps to facilitate the granting of guarantees and such senior employees the pledging, granting of security interests in, and officers otherwise granting of liens on, the assets of the Target Group as Companies, the Buyer may reasonably request in relation JV Participation or the Business which are conditions to the affairs, finances and accounts availability of the Group, provided always that any information provided to the Buyer New Debt Financing pursuant to this Clause 5.7 shall constitute customary guarantee, pledge and security agreements to be effective from and after the Completion Date and without resulting in any costs or Liabilities for any member of the Seller's Confidential Group not subject to reimbursement or indemnification hereunder;
(ii) providing customary authorization letters to the New Debt Financing Sources authorizing the distribution of information to prospective lenders;
(iii) supplementing the Required Information on a reasonably current basis to the extent that any such Required Information, to the knowledge of the Seller, when taken as a whole and in the light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading;
(iv) consenting to the reasonable use of all of the Business' logos, names and trademarks (for the purposes avoidance of doubt excluding "DSM" and the DSM Logo and in accordance with Clause 15 until Completion.
5.2 Until Completion12 (Intellectual Property Rights)) in connection with the syndication of the New Debt Financing; provided that such logos, names and trademarks shall be used solely in a manner that is not in-tended or reasonably likely to harm or disparage the Business, the Seller shall ensure that or its Affiliates, or their respective reputation or goodwill;
(v) taking the 'check relevant resolutions authorizing the box' Tax election status for all entering into of any documentation relating the New Debt Financing, but only with effect from Completion;
(vi) amending the articles of association of the relevant Target Group Companies is made available Company, but only with effect from Completion; and
(vii) providing customary payoff or release letters with respect to any indebtedness creating any Encumbrances on the Shares or assets of the Business or the Target Group Companies, to the Buyer promptly upon request.
5.3 Promptly upon request of the Buyer (provided that the Buyer has first consulted with the Seller in relation to such request and taken account of any request made extent reasonably requested by the Seller for a short delay on Purchaser, but only with effect from the basis that it has reasonable grounds to believe that the authorisation will be received within 5 Business Days), the Seller shall procure that the pending application for FCA authorisation in relation to Globe Underwriting Limited is withdrawn, and shall provide written evidence in a form satisfactory to the Buyer that such withdrawal has taken place.
5.4 The Seller shall procure that Ed Broking LLP will provide TIRA with an updated List of Shareholders (reflecting the changes to the List of Shareholders that will take place on Completion) no later than one calendar month in advance of Completion. The Buyer will provide to the Seller and Ed Broking LLP all reasonable assistance necessary to prepare the updated List of Shareholders.
5.5 Until Completion, the Seller shall promptly inform the Buyer if it or any Group Company receives notice of, or if the Seller otherwise becomes aware of, any Regulatory Action.
5.6 Until Completion, the Seller shall use its reasonable endeavours to procure provided that:
(ad) prior to being granted any such access or cooperation the Purchaser must notify the Seller of the purpose of the request and the extent of access, information and/or cooperation requested;
(e) the relevant access, information and/or cooperation requested must not unreasonably disturb or interfere with the normal operations of the Target Group Company has obtained Companies or breach any applicable laws or regulations;
(f) the prior written unconditional consent access, information and/or cooperation requested must not require the disclosure of any personal data or commercially sensitive information;
(g) the Purchaser and its Representatives must comply with all applicable security, health and safety and other requirements communicated to them;
(h) the Purchaser shall not have the right to perform or conduct sampling or testing activities at, in, or underneath any of the properties occupied by any member of the Target Group or related to the Transaction from the relevant counterparties to the Change of Control Leases; andBusiness;
(b) Ed Broking LLP has obtained the prior written unconditional waiver by Palm Insurance Canada Inc. under the Palm Insurance Loan Agreement in relation to the proposed Change of Control (as that term is defined in the Palm Insurance Loan Agreement) of Ed Broking LLP in connection with the Transaction provided that (i) approaching Palm Insurance Canada Inc. to request such consent would not be otherwise prejudicial to Ed Broking LLP’s interests the Purchaser shall have no rights under the Palm Insurance Loan Agreement, and (ii) Ed Broking has not already renegotiated the terms of Palm Insurance Loan Agreement removing the relevant change of control provision, and the Seller shall keep the Buyer reasonably informed in a timely manner in relation to its progress in obtaining the consents referred to in this Clause 5.6.
5.7 Until Completion, the Seller shall procure that: 11/66881024_3419
(a) the business of each Group Company 6.1 whilst it is carried on in material compliance with Laws applicable to the Group Companies and in substantially the same manner as its businesses have been carried on during the 12 month period prior to the date of this Agreement; and
(b) no Group Company shall do any of the things specified in Schedule 2 (Reserved Matters ), or give any binding undertaking to do any such things.
5.8 Nothing in Clause 5 shall impose any obligation on the Seller to prevent or restrict any Group Company from doing or omitting to do anything:
(a) required for the performance of any contract entered into prior to the date breach of this Agreement;
(bj) required nothing in order this Clause 6.1 will require any member of the Seller's Group or any Target Group Company to incur any Liability prior to Completion (and in case of any member of the Seller's Group, also not after Completion) or to take any action which may prejudice the Seller's rights or position under this Agreement;
(k) nothing in this Clause 6.1 will require (i) any member of the Seller's Group or any Target Group Company to do anything in breach of any existing agreements, including any existing financing arrangements; (ii) any such cooperation or action to the extent that it would create an obligation to provide any financial statements other than the Annual Financial Statements or the Interim Financial Statements or any other statements that may be readily available to the Seller (and Seller's obligation to deliver financial statements (including the timing thereof) shall be governed solely by Clause 6.1(b)(i)((1) and (2)); (iii) any such cooperation or action to the extent that it would impose any personal liability on the officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or other representatives of Seller or any of its Affiliates; (iv) any such cooperation or action to the extent that it would provide access to or disclose information that Seller or its Affiliates reasonably determines would jeopardize any attorney-client or similar privilege of Seller or such Affiliates; or (v) any such cooperation or action to the extent that it would require Seller, its Affiliates or any Representative thereof to deliver or cause to be delivered any opinion of counsel in connection with the New Debt Financing (or any debt being issued in lieu of all or a portion of the New Debt Financing);
(l) authorization letters shall contain customary language which shall exculpate Seller and its Representatives and Affiliates with respect to any Liability related to or responsibility for the contents of such information or related offering and marketing materials by the recipients thereof; and
(m) the Purchaser acknowledges and agrees that any information provided to it, its Affiliates or any of their respective representatives or advisers under this Clause 6.1 is subject to the terms of the Confidentiality Agreement and Clause 21 (Confidentiality). Despite anything to the contrary, the failure of the Seller to comply with any this Clause 6.1 shall not give rise to the non-satisfaction of the condition precedent set forth in Clause 4.1(b) or a termination right pursuant to Clause 4.10 unless the Purchaser fails to obtain the financing contemplated in the New Financing Documents as a result of a breach of the obligations of Seller under this Clause 6.1 of which the Purchaser has sent notice to the Seller and the Seller has failed to remedy as promptly as practicable such breach.
6.2 Subject to Clause 6.4 and all applicable Law or as required by any Authority;laws, the Seller shall and shall procure that the members of the Seller's Group, the Target Group Companies and, to the extent within its control, the JV Company shall, in the period between the Signing Protocol Date and Completion, run the Business in all material respects in the ordinary course consistent with past practice.
6.3 Subject to Clause 6.4 and all applicable laws, the Seller shall ensure that, except (ci) with the written consent of the Purchaser (which shall not to be unreasonably withheld, conditioned or delayed, delayed and to shall in any event be deemed to have been be given if after due notice no response is received within five (5) Business Days of a written request delivered by the Buyer does not reply promptly to a request which the Seller has made clear relates to a matter which requires it to take immediate or prompt steps having regard Seller), (ii) to the expected consequencesextent explicitly set out in Schedule 24 (Permitted Actions) or elsewhere in this Agreement, provided such request is made (iii) to comply with any existing obligation as Fairly Disclosed in the Disclosed Information prior to the Signing Protocol Date, or (iv) in accordance with Clause 29 (Communications) and also made in writing by email to ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇12, or at the written request ofno Target Group Company, the Buyer; or
JV Company (d) required by any Transaction Document.
5.9 The Seller shall notify to the Buyer as soon as reasonably practicable following the Seller becoming aware of any breach of Clause 5.7 by extent within the Seller.'s control) nor any Selling Entity, shall during the period between the Signing Protocol Date and Completion: (a) allot, issue, redeem or repurchase any share capital or membership interest or grant any option over or
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares and Membership Interests (Avient Corp)
PRE-COMPLETION. 5.1 Until CompletionNew Debt Financing
6.1 Without prejudice to the Purchaser's obligations to fund the Completion Amount, in the Buyer and period prior to Completion the Seller shall cooperate use reasonable best efforts to, and shall cause its Affiliates and their personnel and representatives (including legal and accounting representatives) to use reasonable best efforts to, procure that, to the extent reasonably necessary or customary, enable the Purchaser to comply with its obligations under this Agreement to satisfy the remaining conditions precedent to closing set out in good faith the New Finance Documents, or the arrangement of any (additional) financing by the Purchaser in relation to, so far as permissible by applicable Law and without causing material interruption to the business transactions contemplated by this Agreement, including putting in place liquidity support arrangements for the Target Group Companies replacing the 10231132943-v2 - 15 - 55-41021628 IHC (the "New Debt Financing"), by providing the Purchaser and operations of its Representatives, at the GroupPurchaser's cost and expense:
(a) the provision reasonable access to the Buyer senior management team of the Target Group Companies, with appropriate seniority and expertise, at reasonable times and upon reasonable notice, to assist in preparation for and participate in a reasonable number of management and other meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and buyers of, the New Debt Financing), due diligence sessions, drafting sessions, road shows or rating agency presentations in connection with the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing, as well as access to the properties and the books and records of the Target Group Companies at such times during normal business hours on any Business Day as may be convenient to the Seller;
(b) provision of such information regarding the businesses and affairs of the Target Group Companies as is readily available and which the Purchaser may reasonably require in order to comply with its obligations under this Agreement or as may be reasonably necessary or customary in connection with New Finance Documents and the arrangement of any New Debt Financing, including:
(i) (1) furnishing the Purchaser and the New Debt Financing Sources as promptly as practicable with (A) the audited combined balance sheets and related statements of income and cash flows of the Business for the year ending 31 December 2021 and if the Completion Date is after 31 March 2023, 31 December 2022 (the "Annual Financial Statements"), prepared at the Purchaser's expense (provided that the Seller will keep the Purchaser reasonably informed of such expenses), accompanied by the audit report thereon of KPMG, and (B) unaudited combined balance sheets and related statements of income and cash flows of the Business for any subsequent financial quarter and the portion of the fiscal year through the end of such quarter to end at least forty-five (45) days prior to the Completion Date, together with all related notes and schedules thereto, prepared at the Purchaser's own expense (the "Interim Financial Statements"), reviewed by KPMG, as provided in AU-C-930 under the standards of the AICPA, and in the case of clauses (A) and (B) prepared in accordance with IFRS or GAAP and in compliance with Regulation S-X, (2) furnishing the Purchaser and the New Debt Financing Sources, at the Purchaser's expense, as promptly as practicable with all other readily available financial information (including drafts of the Annual Financial Statements and Interim Financial Statements) relating to the Business and reasonably necessary to allow the Purchaser to prepare pro forma financial statements (including for the most recent four fiscal quarter period ended at least forty-five (45) days prior to the Completion Date) in accordance with IFRS or GAAP and Regulation S-X, in each case to the extent the same is of the type and form required to be included in a prospectus for an offering of securities by the Purchaser registered under the Securities Act, or otherwise reasonably necessary to receive from the independent auditors of the Seller (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included 10231132943-v2 - 16 - 55-41021628 in such prospectus) customary "comfort" (including "negative assurance" comfort) with respect to the financial information of the Business to be included in such prospectus (for the avoidance of doubt such "comfort" from the independent auditors of the Seller being limited to the Annual Financial Statements and the Interim Financial Statements or information derived therefrom), and (3) using reasonable best efforts to cause KPMG to furnish consents for use of their audit report concerning the Annual Financial Statements in any customary materials relating to the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing (the authorization letters referred to below, the draft comfort letters referred to below and all information specified in this sub-clause (i), the "Required Information");
(ii) customary and readily available information to the extent requested by the Purchaser and the New Debt Financing Sources to prepare customary prospectuses, lender presentations, roadshow presentations or memoranda, private placement memoranda, bridge teasers, syndication memoranda, bank information memoranda and similar documents and rating agency presentations reasonably required in connection with the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing, including providing records, data or other information in relation readily available and reasonably necessary to support any statistical information or claims relating to the Business appearing in the aforementioned materials and allowing the Purchaser to prepare any financial projections which are conditions to the availability of the New Debt Financing and rating agency presentations;
(iii) disclosing customary information (by posting such information on Debtdomain, IntraLinks, SyndTrak Online or similar electronic means) identified by the Purchaser relating to the Business or the Target Group Companies for purposes of permitting such information to be included in marketing materials or memoranda for the New Debt Financing (or any debt being issued in lieu of all or a portion of the New Debt Financing) to be provided to potential investors who do not wish to receive material non-public information with respect to the Seller and its Affiliates;
(iv) using reasonable best efforts to cause the independent auditors of the Seller to furnish the Purchaser and the New Debt Financing Sources promptly with drafts of customary comfort letters that the independent auditors of the Seller (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in such offering memorandum) are prepared to deliver upon "pricing" of any debt being issued in lieu of all or a portion of the New Debt Financing and to cause such independent auditors to deliver such comfort letters upon the "pricing" of any such debt securities;
(v) executing and delivering the definitive agreements with respect to the New Debt Financing commitments (such definitive agreements being 10231132943-v2 - 17 - 55-41021628 referred to as the "New Debt Financing Agreements") and any other credit agreements, indentures, notes, guarantees, pledge and security documents, including blocked account and control arrangements, hedging arrangements, other definitive financing documents and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by the BuyerPurchaser or the New Debt Financing Sources, in each case to the extent (i) such documents are required to be delivered in connection with the authorization of the New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing and the New Debt Financing Agreements and the execution and delivery of the New Debt Financing Agreements in anticipation of Completion, (ii) such documents are subject to Completion occurring or only with effect from Completion and (iii) do not result in any costs or Liabilities for any member of the Seller's Group;
(vi) promptly, and in any event no later than three (3) Business Days prior to Completion, providing all available documentation and information that any lender, provider or arranger of any New Debt Financing or trustee for the debt securities has reasonably requested at least ten (10) Business Days prior to the Completion Date in connection with such New Debt Financing or debt securities under applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act; and
(bvii) delivering such other information as reasonably requested by the arrangement Purchaser or the New Debt Financing Sources required for the satisfaction on a timely basis of discussions between all the Buyer conditions precedent to the New Debt Financing; and
(c) all reasonable cooperation including:
(i) taking reasonable steps to facilitate the granting of guarantees and such senior employees the pledging, granting of security interests in, and officers otherwise granting of liens on, the assets of the Target Group as Companies, the Buyer may reasonably request in relation JV Participation or the Business which are conditions to the affairs, finances and accounts availability of the Group, provided always that any information provided to the Buyer New Debt Financing pursuant to this Clause 5.7 shall constitute customary guarantee, pledge and security agreements to be effective from and after the Completion Date and without resulting in any costs or Liabilities for any member of the Seller's Confidential Group not subject to reimbursement or indemnification hereunder;
(ii) providing customary authorization letters to the New Debt Financing Sources authorizing the distribution of information to prospective lenders;
(iii) supplementing the Required Information on a reasonably current basis to the extent that any such Required Information, to the knowledge of the Seller, when taken as a whole and in the light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading; 10231132943-v2 - 18 - 55-41021628
(iv) consenting to the reasonable use of all of the Business' logos, names and trademarks (for the purposes avoidance of doubt excluding "DSM" and the DSM Logo and in accordance with Clause 15 until Completion.
5.2 Until Completion12 (Intellectual Property Rights)) in connection with the syndication of the New Debt Financing; provided that such logos, names and trademarks shall be used solely in a manner that is not in-tended or reasonably likely to harm or disparage the Business, the Seller shall ensure that or its Affiliates, or their respective reputation or goodwill;
(v) taking the 'check relevant resolutions authorizing the box' Tax election status for all entering into of any documentation relating the New Debt Financing, but only with effect from Completion;
(vi) amending the articles of association of the relevant Target Group Companies is made available Company, but only with effect from Completion; and
(vii) providing customary payoff or release letters with respect to any indebtedness creating any Encumbrances on the Shares or assets of the Business or the Target Group Companies, to the Buyer promptly upon request.
5.3 Promptly upon request of the Buyer (provided that the Buyer has first consulted with the Seller in relation to such request and taken account of any request made extent reasonably requested by the Seller for a short delay on Purchaser, but only with effect from the basis that it has reasonable grounds to believe that the authorisation will be received within 5 Business Days), the Seller shall procure that the pending application for FCA authorisation in relation to Globe Underwriting Limited is withdrawn, and shall provide written evidence in a form satisfactory to the Buyer that such withdrawal has taken place.
5.4 The Seller shall procure that Ed Broking LLP will provide TIRA with an updated List of Shareholders (reflecting the changes to the List of Shareholders that will take place on Completion) no later than one calendar month in advance of Completion. The Buyer will provide to the Seller and Ed Broking LLP all reasonable assistance necessary to prepare the updated List of Shareholders.
5.5 Until Completion, the Seller shall promptly inform the Buyer if it or any Group Company receives notice of, or if the Seller otherwise becomes aware of, any Regulatory Action.
5.6 Until Completion, the Seller shall use its reasonable endeavours to procure provided that:
(ad) prior to being granted any such access or cooperation the Purchaser must notify the Seller of the purpose of the request and the extent of access, information and/or cooperation requested;
(e) the relevant access, information and/or cooperation requested must not unreasonably disturb or interfere with the normal operations of the Target Group Company has obtained Companies or breach any applicable laws or regulations;
(f) the prior written unconditional consent access, information and/or cooperation requested must not require the disclosure of any personal data or commercially sensitive information;
(g) the Purchaser and its Representatives must comply with all applicable security, health and safety and other requirements communicated to them;
(h) the Purchaser shall not have the right to perform or conduct sampling or testing activities at, in, or underneath any of the properties occupied by any member of the Target Group or related to the Transaction from the relevant counterparties to the Change of Control Leases; andBusiness;
(b) Ed Broking LLP has obtained the prior written unconditional waiver by Palm Insurance Canada Inc. under the Palm Insurance Loan Agreement in relation to the proposed Change of Control (as that term is defined in the Palm Insurance Loan Agreement) of Ed Broking LLP in connection with the Transaction provided that (i) approaching Palm Insurance Canada Inc. to request such consent would not be otherwise prejudicial to Ed Broking LLP’s interests the Purchaser shall have no rights under the Palm Insurance Loan Agreement, and (ii) Ed Broking has not already renegotiated the terms of Palm Insurance Loan Agreement removing the relevant change of control provision, and the Seller shall keep the Buyer reasonably informed in a timely manner in relation to its progress in obtaining the consents referred to in this Clause 5.6.
5.7 Until Completion, the Seller shall procure that: 11/66881024_3419
(a) the business of each Group Company 6.1 whilst it is carried on in material compliance with Laws applicable to the Group Companies and in substantially the same manner as its businesses have been carried on during the 12 month period prior to the date of this Agreement; and
(b) no Group Company shall do any of the things specified in Schedule 2 (Reserved Matters ), or give any binding undertaking to do any such things.
5.8 Nothing in Clause 5 shall impose any obligation on the Seller to prevent or restrict any Group Company from doing or omitting to do anything:
(a) required for the performance of any contract entered into prior to the date breach of this Agreement;
(bj) required nothing in order this Clause 6.1 will require any member of the Seller's Group or any Target Group Company to incur any Liability prior to Completion (and in case of any member of the Seller's Group, also not after Completion) or to take any action which may prejudice the Seller's rights or position under this Agreement;
(k) nothing in this Clause 6.1 will require (i) any member of the Seller's Group or any Target Group Company to do anything in breach of any existing agreements, including any existing financing arrangements; (ii) any such cooperation or 10231132943-v2 - 19 - 55-41021628 action to the extent that it would create an obligation to provide any financial statements other than the Annual Financial Statements or the Interim Financial Statements or any other statements that may be readily available to the Seller (and Seller's obligation to deliver financial statements (including the timing thereof) shall be governed solely by Clause 6.1(b)(i)((1) and (2)); (iii) any such cooperation or action to the extent that it would impose any personal liability on the officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or other representatives of Seller or any of its Affiliates; (iv) any such cooperation or action to the extent that it would provide access to or disclose information that Seller or its Affiliates reasonably determines would jeopardize any attorney-client or similar privilege of Seller or such Affiliates; or (v) any such cooperation or action to the extent that it would require Seller, its Affiliates or any Representative thereof to deliver or cause to be delivered any opinion of counsel in connection with the New Debt Financing (or any debt being issued in lieu of all or a portion of the New Debt Financing);
(l) authorization letters shall contain customary language which shall exculpate Seller and its Representatives and Affiliates with respect to any Liability related to or responsibility for the contents of such information or related offering and marketing materials by the recipients thereof; and
(m) the Purchaser acknowledges and agrees that any information provided to it, its Affiliates or any of their respective representatives or advisers under this Clause 6.1 is subject to the terms of the Confidentiality Agreement and Clause 21 (Confidentiality). Despite anything to the contrary, the failure of the Seller to comply with any this Clause 6.1 shall not give rise to the non-satisfaction of the condition precedent set forth in Clause 4.1(b) or a termination right pursuant to Clause 4.10 unless the Purchaser fails to obtain the financing contemplated in the New Financing Documents as a result of a breach of the obligations of Seller under this Clause 6.1 of which the Purchaser has sent notice to the Seller and the Seller has failed to remedy as promptly as practicable such breach.
6.2 Subject to Clause 6.4 and all applicable Law or as required by any Authority;laws, the Seller shall and shall procure that the members of the Seller's Group, the Target Group Companies and, to the extent within its control, the JV Company shall, in the period between the Signing Protocol Date and Completion, run the Business in all material respects in the ordinary course consistent with past practice.
6.3 Subject to Clause 6.4 and all applicable laws, the Seller shall ensure that, except (ci) with the written consent of the Purchaser (which shall not to be unreasonably withheld, conditioned or delayed, delayed and to shall in any event be deemed to have been be given if after due notice no response is received within five (5) Business Days of a written request delivered by the Buyer does not reply promptly to a request which the Seller has made clear relates to a matter which requires it to take immediate or prompt steps having regard Seller), (ii) to the expected consequencesextent explicitly set out in Schedule 24 (Permitted Actions) or elsewhere in this Agreement, provided such request is made (iii) to comply with any existing obligation as Fairly Disclosed in the Disclosed Information prior to the Signing Protocol Date, or (iv) in accordance with Clause 29 (Communications) and also made in writing by email to ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇12, or at the written request ofno Target Group Company, the Buyer; or
JV Company (d) required by any Transaction Document.
5.9 The Seller shall notify to the Buyer as soon as reasonably practicable following the Seller becoming aware of any breach of Clause 5.7 by extent within the Seller.'s control) nor any Selling Entity, shall durin
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Sources: Purchase Agreement (Avient Corp)