Common use of PRE-COMPLETION Clause in Contracts

PRE-COMPLETION. 6.1 Subject to Clause 6.2 the Seller: 6.1.1 undertakes to the Purchaser that from 29 April 2008 to the date of this Agreement, save as disclosed by the Disclosure Letter, no Group Member has undertaken any act or matter specified in Schedule 7 without the prior written consent of the Purchaser; 6.1.2 undertakes to procure that from the date of this Agreement to Completion no Group Member will undertake any act or course of conduct which is outside the ordinary course of the business of such Group Member without the prior consent of the Purchaser (such consent not to be unreasonably withheld or delayed) and that each member of the Group shall carry on the business of such Group Member in the ordinary course; and 6.1.3 undertakes to procure that from the date of this Agreement until Completion no Group Member shall undertake any of the acts or matters specified in Schedule 7 without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed). 6.2 Clause 6.1 does not apply in respect of and shall not operate so as to restrict or prevent: 6.2.1 any matter reasonably undertaken by any Group Member to preserve the safe operation of the Group’s assets or in an emergency or disaster situation with the intention of minimising any adverse effect thereof (and of which the Purchaser will be promptly notified); 6.2.2 the completion or performance of actions which are reasonably necessary to discharge any obligations undertaken pursuant to any legal or regulatory obligation or pursuant to any contract, arrangement, licence or consent entered into by or relating to any Group Member prior to the date of this Agreement or after the date of this Agreement entered into (or, in the case of a licence or consent, issued or granted) in the ordinary course of business, and in compliance with the requirements of Clause 6.1.3, with a person who is not a Group Member; 6.2.3 any matter provided for in the Transaction Documents or the Restructuring Documents; 6.2.4 the amendment by ATL and Angel Locomotive Leasing Limited of their accounting reference date to 31 March 2008; 6.2.5 any Permitted Leakage (including any draw downs in relation to any payments made under paragraph b(iv) of the definition of Permitted Leakage); 6.2.6 any matter undertaken at the written request or with the written consent of the Purchaser; or 6.2.7 any arrangements to rollover, continue or extend the RBS Debt on identical terms. 6.3 The Seller undertakes that between the date of this Agreement and Completion: (a) it will not amend the margin on the RBS Debt and the RBS Hedging Arrangements without the Purchaser’s prior consent; (b) it will not enter into any hedging arrangements with the Group without the Purchaser’s prior consent; and (c) that if the Seller's Group enters into new debt arrangements with the Group (excluding any arrangements as a result of the operation of Clause 6.2.6) between the date of this Agreement and Completion in compliance with the requirements of Clause 6.1.3 that, subject to such new debt being in the ordinary course of routine banking business for the Seller’s Group, any such debt arrangements will be at no higher margin than 25bps per annum and the terms of such new debt arrangements will not be any more onerous than those found in the RBS Debt and for the avoidance of doubt no arrangement or other fees or costs of any nature will be charged or chargeable by the Seller's Group in relation to such new debt arrangements or the repayment thereof and repayment of interest and principal thereof will result in the Group having no further obligations under such arrangement. 6.4 The liability of the Seller in respect of any claim by the Purchaser in respect of a breach of Clause 6.1 shall be subject to the limitations in Clause 14.

PRE-COMPLETION. 6.1 Subject to Clause 6.2 8.1 In the Sellerperiod between the Signing Date and Completion, the Sellers shall ensure that: 6.1.1 undertakes to (a) each Group Company carries on the Purchaser that from 29 April 2008 to the date of this Agreement, save as disclosed by the Disclosure Letter, no Group Member has undertaken any act or matter specified Business in Schedule 7 without the prior written consent of the Purchaser; 6.1.2 undertakes to procure that from the date of this Agreement to Completion no Group Member will undertake any act or course of conduct which is outside the ordinary course of business; (b) each Group Company takes all reasonable steps to preserve and protect the business of such Group Member without assets and goodwill (including the prior consent of existing relationships with customers and suppliers) associated with the Purchaser (such consent not to be unreasonably withheld or delayed) Business and that each member of the Group shall carry on the business of such Group Member in the ordinary courseits operations; and 6.1.3 undertakes to (c) each Group Company files its tax returns on or before the respective due date and in line with past practice. 8.2 In the period between the Signing Date and Completion, the Sellers shall procure that from that, except with the date of this Agreement until Completion no Group Member shall undertake any of the acts or matters specified in Schedule 7 without the prior written consent of the Purchaser (such consent which shall not to be unreasonably withheld or delayed). 6.2 Clause 6.1 does not apply in respect of delayed and shall not operate so as in any event be deemed to restrict or preventbe given if no response is received within five (5) Business Days of a written request by the Sellers), no Group Company shall: 6.2.1 (a) dispose of or grant, create, allot, issue, redeem or repurchase any matter reasonably undertaken by share or loan capital or right of pre-emption (voorkeursrecht) or other security or grant any Group Member option over or other right to preserve the safe operation of the Group’s assets subscribe for any share or in an emergency loan capital (including shareholder loans or disaster situation with the intention of minimising any adverse effect thereof (and of which the Purchaser will be promptly notifiedprofit participation rights); 6.2.2 (b) create any Encumbrance over its shares, revenues, or assets other than Encumbrances over assets arising in the completion or performance ordinary course of actions business (such as liens and retention of title); (c) incur any capital expenditure that exceeds an amount of EUR100,000 except for any capital expenditure which are reasonably necessary is specified in the investment plan attached to discharge any obligations undertaken pursuant to any legal or regulatory obligation or pursuant to any contract, arrangement, licence or consent entered into by or relating to any Group Member prior to the date of this Agreement or after the date of this Agreement entered into as Appendix 2 (or, Investment Plan); (d) borrow any money (other than as permitted under existing financing arrangements that have been disclosed in the case Data Room) or grant any third party interest bearing debt (including making any amendments to such debt arrangements); (e) acquire or dispose of a licence any business or consentother material assets, issued or granted) other than in the ordinary course of business, and in compliance with the requirements of Clause 6.1.3, with a person who is not a Group Member; 6.2.3 any matter provided for in the Transaction Documents (f) change its accounting procedures, principles, practices, its articles of association or the Restructuring Documents; 6.2.4 the amendment by ATL and Angel Locomotive Leasing Limited of their accounting reference date to 31 March 2008; 6.2.5 any Permitted Leakage (including any draw downs other constitutional documents or its internal allocation policies in relation to any payments made under paragraph b(ivfiscal unity for tax purposes and, in particular, amend its (tax) accounting policies or enter into any special tax arrangements, compromises, rulings or other arrangements with any tax authority which may materially affect the tax position of any of the Group Companies; (g) enter into, terminate or materially amend any contract, agreement or commitment (i) which has an aggregate contract value in excess of EUR250,000 or (ii) which is likely to result in a material change in the nature or scope of the operations of the Business (or any modification of an existing contract or arrangement which would itself fall, or cause the contract or arrangement concerned to fall, within any of (i) and (ii)) or make any bid, tender, proposal or offer likely to lead to any such contract or arrangement; (h) permit any of its insurances to lapse or do anything which would make any policy of insurance void or voidable; (i) institute or settle any litigation where it could result in a payment to or by, or a waiver of a claim by, a Group Company of EUR50,000 or more; (j) make any changes in the terms of employment (including pension fund commitments) of the definition directors and employees of Permitted Leakage)any Group Company other than those required by law or pursuant to other existing binding obligations; 6.2.6 (k) dismiss, employ or agree to employ any matter undertaken at new persons fully or part time with an annual salary in excess of EUR75,000 (based on a full-time equivalent) other than if necessary for the written request replacement of current employees; (l) enter into any merger or demerger transaction or participate in any other type of corporate reconstruction, partnership or profit sharing arrangement; (m) enter into any agreement, including loan agreements, with the written consent any member of the PurchaserSellers’ Groups or of the Related Persons of the Sellers; or 6.2.7 any arrangements (n) agree to rollover, continue or extend the RBS Debt on identical termsdo anything as set out in paragraphs (a) to (m) of this clause 8.2. 6.3 8.3 The Seller undertakes that between the date of this Agreement and CompletionSellers shall: (a) it will not amend the margin on the RBS Debt and the RBS Hedging Arrangements without procure that the Purchaser’s prior consent, its representatives and advisers, to the extent legally permissible: (i) are given reasonable access to the books and records of such respective Group Companies at such times during normal business hours on any Business Day on reasonable notice to the Sellers, provided that such access shall not unreasonably disturb or interfere with the normal operations of the Group Companies; and (ii) for purposes of purchase price accounting, can undertake a fair value, as defined under accounting principles generally accepted in the US (US GAAP), valuation of all real and personal property of the Group Companies, including, but not limited to all land, buildings and equipment and are provided with the available information required for the valuation, given reasonable access to the facilities of the Group Companies and to those employees familiar with the equipment; (b) it will not enter into any hedging arrangements provide the Purchaser after the end of each calendar month with a copy of the most recent management accounts for the Business, as soon as practicable after the approval of such management accounts by the management board; (c) use all reasonable efforts to procure that the Group without Companies effect the Purchaser’s prior consentsteps referred to in Schedule 14 (Pre-Completion Steps) before Completion, provided that completion of such steps shall not be a condition to Completion; and (cd) cooperate and procure that if the Seller's Group enters into new debt arrangements Companies cooperate with the Group (excluding any arrangements as a result of the operation of Clause 6.2.6) between the date of this Agreement and Completion in compliance with the requirements of Clause 6.1.3 that, subject to such new debt being in the ordinary course of routine banking business for the Seller’s Group, any such debt arrangements will be at no higher margin than 25bps per annum and the terms of such new debt arrangements will not be any more onerous than those found in the RBS Debt and for the avoidance of doubt no arrangement or other fees or costs of any nature will be charged or chargeable by the Seller's Group in relation to such new debt arrangements or the repayment thereof and repayment of interest and principal thereof will result in the Group having no further obligations under such arrangementAgreed Audits. 6.4 The liability of the Seller in respect of any claim by the Purchaser in respect of a breach of Clause 6.1 shall be subject to the limitations in Clause 14.