PRE-COMPLETION COVENANTS. 7.1 Subject to clause 7.3 and other than with the prior written consent of the Purchaser (such consent not to be unreasonably conditioned, withheld or delayed), until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall procure that: (i) the business plan and budget of the Kantar Business (taken as a whole) shall not be materially amended or varied; and (ii) in respect of any member of the Target Group other than any Non-Wholly Owned Target Subsidiary: (a) the business of the Target Companies and the Target Subsidiaries is carried on in all material respects in the ordinary course of its day to day business; and (b) no Target Company or Target Subsidiary shall: (i) make any increase in or reduction of its share or loan capital or grant any option to subscribe for or acquire any of its share or loan capital (other than to another Target Company or Target Subsidiary); (ii) make any material amendment to its constitutional documents; (iii) sell, transfer or dispose of, or grant any option to acquire, any part of its business, undertaking or a material part of its assets, other than assets in the ordinary course of business; (iv) borrow any monies or incur any indebtedness other than trade credit or finance leases in the ordinary course of trading and any interest or fees incurred in respect of existing indebtedness; (v) grant, issue or redeem any mortgage, charge, debenture or other security or Encumbrance or give any guarantee or indemnity, other than in the ordinary course of business and then only in respect of the obligations and liabilities of other members of the Target Group; (vi) materially amend, enter into, offer to enter into or terminate or give notice to terminate any terms of employment of a Senior Employee or any person who would have equivalent standing, if an employee of the Target Group; (vii) form any subsidiary or acquire shares in any company or acquire any business or undertaking or participate in, or terminate any participation in, any partnership or joint venture; (viii) change in any material respect the accounting procedures, principles or practices of any Target Company or Target Subsidiary; (ix) initiate, settle or compromise, or fail to take all reasonable steps to defend, any new litigation or other dispute arising after the date of this agreement having a value of at least £500,000 (and other than routine proceedings for the recovery of trade debts in the ordinary course); (x) fail to maintain in full force and effect without replacing with like-for-like cover the insurance policies which it holds or otherwise benefits from; (xi) terminate or materially amend any Material Contract otherwise than: (A) in the ordinary course of business; (B) to make the overall terms thereof more favourable to the Target Group and/or substantially in line with or closer to the relevant and then-current standard terms of business of the Target Group; or (C) if the Material Contract is simultaneously replaced with a substantially similar contract; (xii) fail to conduct its business in compliance with applicable law where the consequences of such non-compliance would be reasonably likely to result in a material adverse effect on the Target Group taken as a whole; (xiii) undertake any reorganisation, reconstruction, demerger, merger, scheme of arrangement or similar or analogous procedure, in each case other than the Kantar Reorganisation; (xiv) change its Tax residence; (xv) make, change or revoke any Tax election, settle or compromise any Tax claim or liability, waive or extend any statute of limitations in respect of Tax or any period within which an assessment or reassessment of Tax may be issued, or prepare or file any Tax Return (or any amendment thereof), except in each case if and to the extent: (i) reflected in the Locked Box Accounts; (ii) required by law; or (iii) in accordance with the past practice of the relevant member of the Target Group or, to the extent applicable to the relevant member of the Target Group, of the WPP Group; or (xvi) agree to do any of the actions referred to in subclauses 7.1(b)(i) to 7.1(b)(xv). 7.2 Subject to clause 7.3 and other than with the prior written consent of the Purchaser (such consent not to be unreasonably conditioned, withheld or delayed), until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall procure that the voting rights attaching to any Equity Interests held directly by a wholly owned member of the WPP Group in a Non-Wholly Owned Target Subsidiary, and (subject to their fiduciary duties and in so far as it is so able) the voting rights of the directors or equivalent appointed by the Parent or any wholly owned member of the WPP Group to the board of directors of a Non-Wholly Owned Target Subsidiary, are not exercised so as to approve any of the matters referred to in clauses 7.1(b)(i) to 7.1(b)(xvi) in respect of such Non-Wholly Owned Target Subsidiary or to approve any matter outside of the ordinary course of the day to day business of such Non-Wholly Owned Target Subsidiary. 7.3 Clauses 7.1 and 7.2 shall not operate to restrict or prevent: (a) any action taken at the request of the Purchaser or with its prior approval; (b) any matter reasonably undertaken by any member of the Target Group in an Emergency Situation with the intention of minimising any adverse effect of the Emergency Situation on any member of the Target Group (and of which the Purchaser will be notified as soon as practicable); (c) any action taken in accordance with any contract or arrangement entered into by any member of the Target Group before the date of this agreement; (d) any act or conduct which any member of the Target Group is required to take, or omit to take, as a result of, or in order to comply with, any applicable law or regulation of any applicable Regulatory Authority; (e) any action that is Permitted Leakage; (f) any action that is required, necessary or desirable in connection with the Kantar Reorganisation and carried out in accordance with the applicable provisions of this agreement; (g) any action or matter required, necessary or desirable to give effect to the EY Acquisition Steps Paper or any provision of this agreement or another Transaction Document, and in each case carried out in accordance with the applicable provisions of this agreement; (h) any action that complies with Schedule 9; or (i) any action that is required, necessary or desirable in connection with clause 23 or otherwise in order for the Target Group to be separated from the Retained Group and to be able to operate its business in all material respects on a standalone basis without reliance on the Retained Group. 7.4 The Purchaser shall be deemed to have given its approval to a matter referred to in clause 7.1 or clause 7.2 (as applicable) unless it notifies the Parent of its objection and its reasons for objecting within five Business Days after receiving a written request for approval from the Parent. 7.5 The Parent shall, as soon as practicable after the date of this agreement (or in accordance with such timing as indicated in the EY Acquisition Steps Paper), undertake such reorganisation of the relevant part of the WPP Group and shall prepare and execute, or procure the preparation and execution of, any document, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 0.1 to 0.8 (inclusive) of the EY Acquisition Steps Paper in order to create the “Simplified transaction structure pre-completion” shown in the EY Acquisition Steps Paper. 7.6 The Parties undertake to ensure that all entities which are to be set up for the purposes of implementing the EY Acquisition Steps Paper (including for the avoidance of any doubt, New US GP Co 1, New US GP Co 2 and New US GP Co 3 (each as referred to in the EY Acquisition Steps Paper) which are incorporated in the Purchaser’s Group prior to the transfer into the WPP Group pursuant to Steps 25, 27 and 29 of the EY Acquisition Steps Paper) undertake no other activities, acquire no other assets and incur no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation. 7.7 Following the satisfaction of the Conditions in accordance with clause 6 and in any event prior to First Completion, the Purchaser shall prepare and execute, or procure the preparation and execution of, any documents, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 1 to 8 (inclusive) and Step 14 of the EY Acquisition Steps Paper. 7.8 Immediately prior to First Completion, the Purchaser shall procure that each of US HoldCo A LLC and US HoldCo B LLC (as referred to in the EY Acquisition Steps Paper) and the Parent shall procure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper) prepare and execute any documents, and perform all other acts and things, in each case as are required or necessary in order to implement the mergers pursuant to Step 34 of the EY Acquisition Steps Paper. The Parties agree that the Parent shall, following implementation of Step 34 of the EY Acquisition Steps Paper and in any event prior to First Completion, procure that US HoldCo B LLC, US HoldCo A LLC and other members of the WPP Group, and the Purchaser shall procure that the officers of US HoldCo B LLC and US HoldCo A LLC prepare and execute any documents, and perform all other acts and things, in each case as are required, necessary or desirable in order for US HoldCo B LLC and US HoldCo A LLC to declare, make and pay the distributions pursuant to Steps 35 and 36 of the EY Acquisition Steps Paper, and transfer US HoldCo A LLC as contemplated in Steps 37 and 38 of the EY Acquisition Steps Paper. 7.9 Following the satisfaction of the Conditions in accordance with clause 6 and in any event prior to First Completion, the Parent shall prepare and execute, or procure the preparation and execution of, any documents and shall perform or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 26, 28, 30, 31, 32 and 33 of the EY Acquisition Steps Paper. 7.10 The Purchaser undertakes to ensure that each of US HoldCo A LLC and US HoldCo B LLC, and the Parent undertakes to ensure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper), in each case will be, at the time of implementation of Step 34 of the EY Acquisition Steps Paper, companies set up for the purposes of the Transaction and its financing in accordance with the EY Acquisition Steps Paper and the Purchaser Finance Documents and, except for the actions contemplated to be taken by them pursuant to the EY Acquisition Steps Paper and the Purchaser Finance Documents, will have undertaken no other activities, acquired no other assets and incurred no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation. 7.11 Until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall: (a) procure (in so far as it is able) that subject to applicable law, the Purchaser and its agents and representatives are, during normal business hours and on reasonable notice, given reasonable access to the Senior Employees and the books and records of the Target Group to the extent reasonably required by the Purchaser for the purpose of planning for its investment in the Target Group and on and with effect from First Completion (or Deferred Completion, as applicable) provided that this obligation shall not extend to allow access to information reasonably regarded by the Parent as confidential to the Parent or the Retained Group; and (b) cooperate and assist, and shall use commercially reasonable efforts to procure (in so far as it is able) that the Sellers, the Deferred Sellers, the Target Group and their respective directors, officers, employees, accountants and other professional advisers and representatives (at the Purchaser Group’s sole expense) provide relevant information to, and cooperate and assist (in each case to the extent such cooperation and assistance is legally permissible and does not interfere unreasonably with the operation of the Sellers, the Deferred Sellers or the Target Group, as applicable) with, the Purchaser’s Group and with any of its prospective debt financing providers, rating agencies and other professional advisers and representatives in connection with and in order to facilitate the debt financing of the Transaction (which is intended to include loan and debt securities financings) and any related debt syndication, consisting of, but not limited to: (i) participating in a reasonable number of lender, investor and rating agency meetings, road shows, due diligence sessions and drafting sessions; (ii) assisting with the preparation of credit rating agency presentations, bank information memoranda, offering or private placement memoranda, prospectuses and other similar offering documents; (iii) using commercially reasonable efforts in providing customary due diligence materials, ‘know your customer’ (KYC) documents and any other customary documents and certificates; (iv) providing customary audited annual and reviewed interim financial statements (including the Accounts and equivalent accounts for the preceding two financial years) and audit reports (and provided, in each case, that the Purchaser’s Group and any of its prospective debt financing providers, rating agencies and other professional advisers and representatives (as applicable) execute and deliver any hold harmless letters that may be required by the Parent’s or the Target Group’s advisers in respect thereof); (v) providing any other information that is customarily included or provided in an offering of high yield debt securities under Rule 144A and Regulation S under the US Securities Act of 1933 and, with respect to financial statements and other financial information, as may be required to receive SAS 72-style comfort (including negative assurance) from an independent accountant; and (vi) consenting to the use of the Target Group’s logos in connection with the debt financing (provided such logos are used solely in a manner that is not intended to harm the reputation or goodwill of the Target Group). 7.12 The Parent shall procure that each Tax-Consolidated Target Group Company ceases, with effect from a time no later than the First Completion Date or the relevant Deferred Completion Date (as applicable) for that Tax-Consolidated Target Group Company, to be a member of any Tax Consolidation of which it is a member as at the date of this agreement, in each case if and to the extent that the same has not already occurred by that time by operation of law or otherwise. 7.13 With effect from the date of this agreement: (a) the Parent shall: (i) use all commercially reasonable efforts to procure (in so far as it is able) that each relevant member of the WPP Group obtains all consents, approvals or authorisations from any third parties that are reasonably required so as to allow the relevant members of the Retained Group and the relevant members of the Target Group to each remain in occupation of, and continue to operate their respective business out of, the Co-Location Properties following First Completion; (ii) (in obtaining all consents, approvals or authorisations pursuant to clause 7.13(a)(i) above) use all reasonably commercial efforts to procure that the annual rent that will be payable by each member of the Target Group (in respect of their shared occupation of the Co-Location Properties (or any parts of them) with the relevant member of the Retained Group) following First Completion, shall not be materially higher than the annual rent payable by them on the date of this agreement provided that if a third party landlord increases th
Appears in 1 contract
PRE-COMPLETION COVENANTS. 7.1 Subject Until Completion, each Seller shall, insofar as it is legally able to clause 7.3 do so, and shall use all reasonable endeavours to procure that the Warrantors: (i) use all reasonable endeavours to ensure that the business of the Group will be carried on in the ordinary and usual course on the same basis and in substantially the same manner as immediately prior to the date of this Agreement, (ii) use all reasonable endeavours to preserve the goodwill and organization of the Group’s businesses and the relationships with its customers, suppliers, employees and other than with material business relations, and (iii) without limiting the generality of the foregoing, ensure that without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, delayed or conditioned, withheld or delayed), until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall procure that: (i) the business plan and budget of the Kantar Business (taken as a whole) shall not be materially amended or varied; and (ii) in respect of any member of the Target no Group other than any Non-Wholly Owned Target SubsidiaryCompany will:
(a) the business acquire, sell or otherwise dispose or transfer any shares, loan capital or other securities of the Target Companies and the Target Subsidiaries is carried on in all material respects in the ordinary course of any person (whether by merger, split up, contribution or any other transaction affecting its day to day business; andshare capital);
(b) no Target increase, redeem or decrease its share or loan capital, authorize or issue any other securities, except for share capital increases or issuances of loan capital subscribed by a Group Company in another Group Company or Target redemption or decreases in share or loan capital by a Group Company from another Group Company;
(c) declare or pay a dividend, an interim dividend or make any other distribution (whether in cash, stock or in kind) (other than a dividend or a distribution declared or paid from a Group Company to another Group Company);
(d) make any amendment to the terms of any shares, loan capital or other securities of any Group Company (other than shares, loan capital or other securities of a Group Company held by another Group Company);
(e) make any amendments to its constitutional or organizational documents (other than any amendment that would not require the vote of its shareholders);
(f) make any material change in the nature of its business, or enter into new lines of business, including agreeing or entering into arrangements or agreements for providing management and ancillary services for active infrastructure or equipment, in each case on terms where the applicable member of the Group that is a party thereto is not able to terminate such arrangement or agreement on no more than 6 months’ prior written notice without any additional cost, expense, penalty or other liability or obligation imposed on any member of the Group in connection with such termination;
(g) incorporate any Subsidiary shallcompanies or resolve the dissolution and/or winding-up of any of the Group Companies;
(h) acquire all or part of any business undertaking (including by acquiring assets or securities) in a single transaction or series of related transactions, at a price or with a value in the aggregate in excess of US$5,000,000; provided that the acquisition in connection with the Airtel Tower Transaction shall not require the prior written consent of the Purchaser so long as the purchase price (including any assumed debt) therefor does not exceed US$21,000,000 (excluding any sales, value added, transfer, stamp or similar Taxes that may be borne by any Group Company in connection with the Airtel Tower Transaction);
(i) dispose of all or part of any business undertaking (including by disposing of assets or securities), (1) in a single transaction or series of related transactions, at a price or with a value in the aggregate in excess of US$2,500,000; or (2) where such disposal would cause the aggregate value for all such disposals to exceed US$5,000,000;
(j) enter into, vary, apply for, amend, renew, extend or terminate, or waive any right under, or voluntarily fail to renew any agreement for the construction, lease, occupation, operation or use of a site containing passive infrastructure for telecommunication services (including in-building solutions), except for:
(i) make entry into any increase individual site agreements under existing master lease agreements or BTS Agreements in connection with (A) new Colocations, (B) additional loading capacity, energy use or reduction of its share or loan capital or grant any option to subscribe for or acquire any of its share or loan capital (other than to another Target Company or Target Subsidiary);
(ii) make any material amendment to its constitutional documents;
(iii) sell, transfer or dispose ofground space rental, or grant any option to acquire(C) the updating, any part reconfiguration or adjustment of its businessinstalled equipment, undertaking or a material part of its assets, other than assets each in the ordinary course of business;
(ivii) borrow any monies or incur any indebtedness other than trade credit or finance entry into new leases in the ordinary course of trading business for the use of such sites that are owned or operated by a Group Company on the Relevant Jurisdiction’s then-current market terms;
(iii) renewals of leases for the use of such sites that are owned or operated by a Group Company that (A) have a remaining term of less than 18 months from time to time and/or (B) result in an increase in ground rent consistent with then prevailing market ground rent in the Relevant Jurisdiction;
(iv) variations or amendments to any existing operation and maintenance contracts with respect to a site owned or operated by a Group Company, including the scope of work thereunder or any interest or fees incurred other term that would negatively affect the ability of the Group Company to comply with the service level obligations under then-existing agreements with customers, other than (A) where the service provider fails to perform its obligations in accordance with the terms and conditions of any such contract, (B) extension of the term of any such contract that is due to expire before the Longstop Date (as may be extended under the terms and conditions of the Agreement) of no more than 12 months, (C) price increases limited to the greater of (x) 5% on an aggregate basis in respect of existing indebtednesssuch contract (as stated in LCY) and (y) the applicable local Consumer Price Index at the time of such price increase, and (D) any amendments or variations that would not adversely affect the operation of the applicable site or the Group Company’s obligations to its customers at such site;
(v) grantwaivers of rights under, issue variations or redeem amendments to any mortgage, charge, debenture existing master lease agreements or other security equivalent framework agreements with respect to Colocations and BTS Agreements that are operationally driven and are neither material nor have an adverse economic impact on any Group Company;
(vi) waivers of rights, variations or Encumbrance amendments that are operationally driven and are neither material nor have an adverse economic impact on any Group Company;
(vii) adjustments in pricing pursuant to the terms of the relevant individual site agreements in effect on the date of this Agreement;
(viii) variations or give amendments that effect price discounts of not more than 5% (by reference to then-current rates) in any guarantee individual site agreements that are in effect as of the date of this Agreement with Tier 1 Customers or indemnityTier 2 Customers; and
(ix) enter into a master lease agreement and new Colocations with Lycamobile in Uganda;
(i) accelerate or delay the collection of receivables, grant volume rebates or discounts to customers or factor receivables, in each case outside the ordinary course of business or inconsistent with past practice or (ii) make any material payments other than in a manner consistent with previous dealings with the recipients of such payments, in each case outside the ordinary course of business or inconsistent with past practice;
(l) make any change to the accounting bases, practices, policies or procedures in place within the Group Companies, except as required by applicable law or IFRS;
(i) make, change or revoke, or permit to be made, changed or revoked, any Tax election, or change any of its methods of accounting or reporting for Tax purposes, except as required by applicable law or (ii) settle any Tax audit, provided that nothing done, made, changed, revoked or permitted by the Sellers or the Warrantors without the consent of the Purchaser under this sub-Clause (m) shall restrict the right of the Purchaser to make a claim against the Sellers or the Warrantors (as appropriate) under any Transaction Document;
(n) change its residence for Tax purposes or establish a permanent establishment or any other presence which may be subject to Tax under applicable law in a jurisdiction other than that of its current residence for Tax purposes;
(o) make any material changes to its insurance policies;
(p) institute or settle, or agree to settle, any litigation or injunction in respect of which the amount claimed is in excess of US$250,000 or series of related claims in excess of US$250,000 or which would result in a payment to or by any Group Company (excluding any insurance recoveries) greater than US$250,000;
(i) omit timely to make any filing with or pay any fees to any Governmental Authority necessary to maintain any operating licences (including timely payment of all licence renewal fees) or permits, (ii) terminate or fail to renew or extend any operating licence or permit (iii) agree to any modification or amendment of any of its operating licences or permits, or (iv) seek any new operating licences or material permits, in each case other than (A) as required by applicable law or any obligation of the Sellers under this Agreement, (B) as would not have a material and adverse effect on the relevant Group Company and (C) applications for new site permits (including build, aviation or airspace safety, environmental, radiation or fire permits) or the renewals, modifications or amendments thereof in the ordinary course of business and then only in respect of the obligations and liabilities of other members of the Target Groupbusiness;
(vir) materially amendincur any Indebtedness for borrowed money, enter into, offer to enter into or terminate or give notice to terminate any terms of employment of a Senior Employee or any person who would have equivalent standing, if an employee other than in connection with (i) the financing of the Target Group;
(vii) form any subsidiary or acquire shares in any company or acquire any business or undertaking or participate inAirtel Tower Transaction, or terminate any participation in(ii) (A) the receipt of trade credit, any partnership or joint venture;
(viiiB) change in any material respect drawdowns under the accounting procedures, principles or practices of any Target Company or Target Subsidiary;
(ix) initiate, settle or compromiseExisting Facilities, or fail to take all reasonable steps to defend(C) use of available overdraft facilities, any new litigation or other dispute arising after the date of this agreement having a value of at least £500,000 (and other than routine proceedings for the recovery of trade debts in the ordinary course);
(x) fail to maintain in full force and effect without replacing with like-for-like cover the insurance policies which it holds or otherwise benefits from;
(xi) terminate or materially amend any Material Contract otherwise than: each case (A), (B) and (C) in the ordinary course of business; (B) to make the overall terms thereof more favourable to the Target Group and/or substantially in line with or closer to the relevant and then-current standard terms of business of the Target Group; or (C) if the Material Contract is simultaneously replaced with a substantially similar contract;
(xiis) fail grant any loan to conduct its any third parties (including to directors, officers or employees of the Group Companies) outside the ordinary course of business in compliance or inconsistent with applicable law where the consequences of such non-compliance would be reasonably likely past practice, except payment terms for goods or services provided to result in a material adverse effect on the Target any person and except for loans to another Group taken as a wholeCompany;
(xiiit) undertake guarantee the obligation of any reorganisationthird party (other than another Group Company) outside the ordinary course of business or inconsistent with past practice;
(u) create any Encumbrance over any part of its material assets outside the ordinary course of business or guarantee or indemnify the obligations of any third party (other than another Group Company);
(v) enter into any material new agreement or amend or modify any existing material agreement with any trade union, reconstruction, demerger, merger, scheme of arrangement works council or similar body of employee representatives;
(w) pay any bonus or analogous proceduretermination payment or other emolument to any Employee which is outside the ordinary course of business or is inconsistent with past practice, other than if such payment is or would be a Permitted Leakage;
(x) appoint or remove any Senior Employee or director or make any amendment to the remuneration, bonus terms or terms of engagement of any Senior Employee or director, other than any removal of any Senior Employee or director for cause, other than if such action is or would be a Permitted Leakage;
(y) vary or amend any management incentive plan of any Group Company or the terms of employment of, bonus or remuneration or other benefits of any nature whatsoever payable to any Senior Employee, in each case other than any variations made in the Kantar Reorganisationordinary course of business, consistent with past practice, or if such action is or would be a Permitted Leakage;
(xivz) change its Tax residence;
(xv) maketerminate, change renew, extend or revoke make any Tax electionmaterial amendments or modifications to any Group Company’s existing office lease, settle or compromise any Tax claim or liability, waive or extend any statute other than an extension on a month-to-month basis of limitations the term of the Group’s lease in respect of Tax or any period within which an assessment or reassessment of Tax may be issued, or prepare or file any Tax Return (or any amendment thereof), except in each case if and to the extent: (i) reflected in the Locked Box Accounts; ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ to 11 January 2020, (ii) required by law; or GoldCrest Executive, Al Thanyah Fifth, Dubai to 31 July 2020, (iii) Part of 9th Floor, Tower B, Reliable Towers on Land Reference Number 209/5959, Nairobi to 29 February 2020 and (iv) Part of 10th Floor, Tower B, Reliable Towers on Land Reference Number 209/5959, Nairobi to 29 February 2020, provided that, in accordance with the past practice of the relevant member of the Target Group oreach case, to the extent applicable that, after the Sellers have taken all reasonable endeavours to extend such leases on a month-to-month basis, the relevant member Group is unable to obtain such extension, the Group may enter into longer extensions in respect of such leases, provided that the Target Group, of the WPP GroupSellers shall have taken all reasonable endeavours to ensure that such extensions contain an extension term as short as practically possible; or
(xviaa) agree enter into any commitment or agreement to do any of the actions referred to in subclauses 7.1(b)(i) to 7.1(b)(xv)above.
7.2 Subject For the purposes of this Clause 7, “the Sellers using all reasonable endeavours” shall refer to clause 7.3 and other than with the prior written consent of the Purchaser (such consent not to be unreasonably conditioned, withheld or delayed), until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall procure that the voting Sellers exercising their respective rights attaching to any Equity Interests held directly by a wholly owned member of the WPP Group in a Non-Wholly Owned Target Subsidiary, and (subject to their fiduciary duties and in so far as it is so able) the voting rights of the through nominee directors or equivalent appointed by the Parent or any wholly owned member of the WPP Group to on the board of directors of a Non-Wholly Owned Target Subsidiary, are not exercised so the Company (as to approve any applicable) and in their respective capacity as shareholders at the shareholders’ meetings of the matters referred to Company in clauses 7.1(b)(i) to 7.1(b)(xvi) in respect of such Non-Wholly Owned Target Subsidiary or to approve any matter outside of the ordinary course of the day to day business of such Non-Wholly Owned Target Subsidiarya manner consistent with this Clause 7.
7.3 Clauses Nothing in this Clause 7.1 and 7.2 shall not operate so as to restrict or prevent, or so as to require any Seller, any of the Sellers’ respective Affiliates, or a Group Company to act in a manner that restricts or prevents, between the date of this Agreement and Completion:
(a) any action taken at specifically Disclosed in the request of the Purchaser or with its prior approvalDisclosure Letter;
(b) any matter action reasonably undertaken by required to satisfy the ▇▇▇▇▇ Towers Egypt Condition (provided such action does not impose any member of the Target Group in an Emergency Situation with the intention of minimising any adverse effect of the Emergency Situation liability or obligation on any member of the Target Group (and of which the Purchaser will be notified as soon as practicableor the Group following Completion);
(c) any action taken in accordance director or officer of any Seller, the Sellers’ respective Affiliates or any Group Company from complying with any contract his or arrangement entered into by any member of the Target Group before the date of this agreementher fiduciary duties under applicable law;
(d) any act action reasonably undertaken by any Seller, the Sellers’ respective Affiliates or any Group Company in an emergency or other extraordinary situation with a view to minimizing any material adverse effect on any Seller, the Sellers’ respective Affiliates or Group Company;
(e) any action or conduct which any member of the Target Group Company is required to take, or omit to take, as a result of, or in order to comply withwith any, any applicable law or regulation or any request or demand of any applicable Regulatory Governmental Authority;
(e) any action that is Permitted Leakage;
(f) any action reasonably necessary to discharge any obligation pursuant to any contract, arrangement, licence or consent that is required, necessary or desirable in connection with entered into prior to the Kantar Reorganisation and carried out in accordance with the applicable provisions date of this agreementAgreement (to the extent such contract, arrangement, licence or consent has been Disclosed prior to the date of this Agreement);
(g) any action taken at the written request of the Purchaser or matter required, necessary or desirable to give effect to the EY Acquisition Steps Paper or any provision of this agreement or another Transaction Document, and in each case carried out in accordance with the applicable provisions written consent of this agreement;the Purchaser; or
(h) any matter provided for or action that complies with Schedule 9; or
(i) any action that is requiredreasonably required to give effect to, necessary or desirable in connection with clause 23 or otherwise in order for including exercise of rights under, the Target Group to be separated from the Retained Group and to be able to operate its business in all material respects on a standalone basis without reliance on the Retained GroupTransaction Documents.
7.4 The Purchaser shall be deemed to have given its approval to a matter referred to in clause 7.1 or clause 7.2 Sellers’ Representative (as applicable) unless it notifies the Parent of its objection and its reasons for objecting within five Business Days after receiving a written request for approval from the Parent.
7.5 The Parent shall, as soon as practicable after the date of this agreement (or in accordance with such timing as indicated in the EY Acquisition Steps Paper), undertake such reorganisation on behalf of the relevant part Sellers) shall take all actions necessary to exercise the drag-along rights under, and cause the waiver of all rights of pre-emption or similar rights over any of the WPP Group and shall prepare and executeShares conferred by, or procure the preparation and execution of, any document, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 0.1 to 0.8 (inclusive) articles of association of the EY Acquisition Steps Paper in order to create Company and the “Simplified transaction structure pre-completion” shown in the EY Acquisition Steps Paper.
7.6 The Parties undertake to ensure that all entities which are to be set up for the purposes of implementing the EY Acquisition Steps Paper (including for the avoidance of any doubt, New US GP Co 1, New US GP Co 2 and New US GP Co 3 (each as referred to in the EY Acquisition Steps Paper) which are incorporated in the Purchaser’s Group prior shareholders’ agreement relating to the transfer into the WPP Group pursuant to Steps 25, 27 and 29 of the EY Acquisition Steps Paper) undertake no other activities, acquire no other assets and incur no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation.
7.7 Following the satisfaction of the Conditions in accordance with clause 6 and in any event prior to First Completion, the Purchaser shall prepare and execute, or procure the preparation and execution of, any documents, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 1 to 8 (inclusive) and Step 14 of the EY Acquisition Steps Paper.
7.8 Immediately prior to First Completion, the Purchaser Company. The Sellers shall procure that each of US HoldCo A LLC and US HoldCo B LLC (as referred to in the EY Acquisition Steps Paper) and the Parent shall procure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper) prepare and execute any documents, and perform all other acts and things, in each case as are required or necessary in order to implement the mergers pursuant to Step 34 of the EY Acquisition Steps Paper. The Parties agree that Shares shall be transferred to the Parent shall, following implementation Purchaser on Completion free of Step 34 of the EY Acquisition Steps Paper and in any event prior to First Completion, procure that US HoldCo B LLC, US HoldCo A LLC and other members of the WPP Group, Encumbrances and the Purchaser shall not be required to proceed to Completion unless all of the Shares are so delivered to the Purchaser. True, correct and complete copies of all such notices and related materials delivered to the Other Shareholders shall be promptly delivered to the Purchaser.
7.5 Each of the Sellers shall use all reasonable endeavours to procure that the officers of US HoldCo B LLC and US HoldCo A LLC prepare and execute any documents, and perform all other acts and things, in each case as are required, necessary or desirable in order for US HoldCo B LLC and US HoldCo A LLC to declare, make and pay the distributions pursuant to Steps 35 and 36 of the EY Acquisition Steps Paper, and transfer US HoldCo A LLC as contemplated in Steps 37 and 38 of the EY Acquisition Steps Paper.
7.9 Following the satisfaction of the Conditions in accordance with clause 6 and in any event prior to First Completion, the Parent shall prepare and execute, or procure the preparation and execution of, any documents and shall perform or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 26, 28, 30, 31, 32 and 33 of the EY Acquisition Steps Paper.
7.10 The Purchaser undertakes to ensure that each of US HoldCo A LLC and US HoldCo B LLC, and the Parent undertakes to ensure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper), in each case will be, at the time of implementation of Step 34 of the EY Acquisition Steps Paper, companies set up for the purposes of the Transaction and its financing in accordance with the EY Acquisition Steps Paper and the Purchaser Finance Documents and, except for the actions contemplated to be taken by them pursuant to the EY Acquisition Steps Paper and the Purchaser Finance Documents, will have undertaken no other activities, acquired no other assets and incurred no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation.
7.11 Until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall:
(a) procure (in so far as it is able) that subject to applicable law, the Purchaser and its agents and representatives areshall, during normal business hours and on reasonable noticeat the Purchaser’s sole cost, be given reasonable access to the Senior Employees and the books and records of the Target Group to the extent reasonably required by the Purchaser for the purpose of planning for its investment in the Target Group and on and with effect from First Completion (or Deferred Completion, as applicable) provided that this obligation shall not extend to allow access to information reasonably regarded by the Parent as confidential to the Parent or the Retained Group; and
(b) cooperate and assist, and shall use commercially reasonable efforts to procure (in so far as it is able) that the Sellers, the Deferred Sellers, the Target Group and their respective directors, officers, employees, accountants and other professional advisers and representatives (at the Purchaser Group’s sole expense) provide relevant information to, and cooperate and assist (in each case to the extent such cooperation and assistance is legally permissible and does not interfere unreasonably with the operation of the Sellers, the Deferred Sellers or the Target Group, as applicable) with, the Purchaser’s Group and with any of its prospective debt financing providers, rating agencies and other professional advisers and representatives in connection with and in order to facilitate the debt financing of the Transaction (which is intended to include loan and debt securities financings) and any related debt syndication, consisting of, but not limited during normal working hours to: (i) participating in a reasonable number of lender, investor and rating agency meetings, road shows, due diligence sessions and drafting sessionsSenior Employees; (ii) assisting the information listed in, and in accordance with the preparation of credit rating agency presentationsterms of, bank information memoranda, offering or private placement memoranda, prospectuses the Access to Information Protocol (as defined in the Warranty Deed); and other similar offering documents; (iii) using commercially reasonable efforts subject to the prior written consent of a Warrantor and under the supervision of a relevant Senior Employee, to the Group Companies’ management and premises, and (x) in providing customary due diligence materials, ‘know your customer’ the case of paragraphs (KYC) documents and any other customary documents and certificates; (iv) providing customary audited annual and reviewed interim financial statements (including the Accounts and equivalent accounts for the preceding two financial yearsi) and audit reports (and providediii) above, in each case, that the Purchaser’s Group and any of its prospective debt financing providers, rating agencies and other professional advisers and representatives (such access shall be only as applicable) execute and deliver any hold harmless letters that may be required by the Parent’s or the Target Group’s advisers in respect thereof); (v) providing any other information that is customarily included or provided in an offering of high yield debt securities under Rule 144A and Regulation S under the US Securities Act of 1933 and, with respect to financial statements and other financial information, as may be reasonably required to receive SAS 72-style comfort (including negative assurance) from an independent accountant; facilitate the ownership transition process and (vi) consenting to the use of the Target Group’s logos in connection with the debt financing (provided such logos are used solely in a manner that is not intended to harm the reputation or goodwill of the Target Group).
7.12 The Parent shall procure that each Tax-Consolidated Target Group Company ceases, with effect from a time no later than the First Completion Date or the relevant Deferred Completion Date (as applicable) for that Tax-Consolidated Target Group Company, to be a member of any Tax Consolidation of which it is a member as at the date of this agreement, in each case if and only to the extent that such access does not unreasonably interfere with the same has not already occurred by that time by operation of law or otherwise.
7.13 With effect from the date of this agreement:
(a) the Parent shall:
(i) use all commercially reasonable efforts to procure (in so far as it is able) that each relevant member operations of the WPP Group obtains all consents, approvals Companies or authorisations from any third parties the discharge by the Senior Employees of their day-to-day duties and responsibilities with respect to the Group Companies and further provided that are reasonably required so as such access shall in each case be given subject to allow the relevant members of the Retained Group notice to and the relevant members general oversight by the Sellers’ Representative and (y) in the case of the Target Group to each remain in occupation of, and continue to operate their respective business out of, the Co-Location Properties following First Completion;
(ii) (in obtaining all consents, approvals or authorisations pursuant to clause 7.13(a)(i) above) use all reasonably commercial efforts to procure that the annual rent that will be payable by each member of the Target Group (in respect of their shared occupation of the Co-Location Properties (or any parts of them) with the relevant member of the Retained Group) following First Completion, shall not be materially higher than the annual rent payable by them on the date of this agreement provided that if a third party landlord increases thpa
Appears in 1 contract
Sources: Share Purchase Agreement (American Tower Corp /Ma/)
PRE-COMPLETION COVENANTS. 7.1 Subject to clause 7.3 6.1. During the period from the Signing Date until the Completion Date, the Seller shall procure that each of the Group Companies;
6.1.1. carries on its business in the ordinary course, consistent with past practice and other than in accordance with applicable laws and regulations;
6.1.2. without the prior written consent of the Purchaser (Purchasers, such consent not to be unreasonably conditioned, withheld or delayed), until the First Completion Date (and in respect of any Deferred Target Subsidiary onlyexcept as contemplated by this Agreement, until the relevant Deferred Completion Date) the Parent undertakes that it shall procure that: (i) the business plan and budget of the Kantar Business (taken as a whole) shall not be materially amended or varied; and (ii) in respect of take any member of the Target Group other than any Non-Wholly Owned Target Subsidiaryaction to:
(aA) the business amend its articles of the Target Companies and the Target Subsidiaries is carried on in all material respects in the ordinary course of its day to day business; and
(b) no Target Company or Target Subsidiary shall:
(i) make any increase in or reduction of its share or loan capital or grant any option to subscribe for or acquire any of its share or loan capital (other than to another Target Company or Target Subsidiary)association;
(iiB) make pass or adopt any material amendment to resolution of its constitutional documentsshareholder or any class of shareholders, whether in general meeting or otherwise;
(iiiC) sellsettle any existing or initiate any new litigation exceeding EUR 150,000 in each case excluding any existing or new litigation or any disputes in relation to customs;
(D) change the accounting procedures, transfer principles or practices of any Group Company;
(E) issue any shares or issue any instrument that gives its holder the right to acquire or subscribe for shares;
(F) acquire or dispose of, of any business or grant any option to acquire, any part of its business, undertaking or a other material part of its assets, asset other than assets in the ordinary course of business;
(ivG) borrow make any monies material changes to the remuneration of any employee with an annual gross salary of EUR 40,000 or incur any indebtedness other than trade credit or finance leases in more at the ordinary course of trading and any interest or fees incurred in respect of existing indebtedness;
(v) grant, issue or redeem any mortgage, charge, debenture or other security or Encumbrance or give any guarantee or indemnity, Signing Date other than in the ordinary course of business and then only business;
(H) grant or issue any Encumbrance on any asset, property or share.
6.2. If the Purchasers have not responded in writing within 5 Business Days after receipt of a request for consent by the Seller or any of the Group Companies in respect of the obligations and liabilities of other members of the Target Group;
(vi) materially amend, enter into, offer to enter into or terminate or give notice to terminate any terms of employment of a Senior Employee or any person who would have equivalent standing, if an employee of the Target Group;
(vii) form any subsidiary or acquire shares in any company or acquire any business or undertaking or participate in, or terminate any participation in, any partnership or joint venture;
(viii) change in any material respect the accounting procedures, principles or practices of any Target Company or Target Subsidiary;
(ix) initiate, settle or compromise, or fail to take all reasonable steps to defend, any new litigation or other dispute arising after the date of this agreement having a value of at least £500,000 (and other than routine proceedings for the recovery of trade debts in the ordinary course);
(x) fail to maintain in full force and effect without replacing with like-for-like cover the insurance policies which it holds or otherwise benefits from;
(xi) terminate or materially amend any Material Contract otherwise than: (A) in the ordinary course of business; (B) to make the overall terms thereof more favourable to the Target Group and/or substantially in line with or closer to the relevant and then-current standard terms of business of the Target Group; or (C) if the Material Contract is simultaneously replaced with a substantially similar contract;
(xii) fail to conduct its business in compliance with applicable law where the consequences of such non-compliance would be reasonably likely to result in a material adverse effect on the Target Group taken as a whole;
(xiii) undertake any reorganisation, reconstruction, demerger, merger, scheme of arrangement or similar or analogous procedure, in each case other than the Kantar Reorganisation;
(xiv) change its Tax residence;
(xv) make, change or revoke any Tax election, settle or compromise any Tax claim or liability, waive or extend any statute of limitations in respect of Tax or any period within which an assessment or reassessment of Tax may be issued, or prepare or file any Tax Return (or any amendment thereof), except in each case if and to the extent: (i) reflected in the Locked Box Accounts; (ii) required by law; or (iii) in accordance with the past practice of the relevant member of the Target Group or, to the extent applicable to the relevant member of the Target Group, of the WPP Group; or
(xvi) agree to do any of the actions referred to in subclauses 7.1(b)(i) to 7.1(b)(xv).
7.2 Subject to clause 7.3 and other than with Clause 6.1.2, the prior written consent of the Purchaser (such consent not to be unreasonably conditioned, withheld or delayed), until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall procure that the voting rights attaching to any Equity Interests held directly by a wholly owned member of the WPP Group in a Non-Wholly Owned Target Subsidiary, and (subject to their fiduciary duties and in so far as it is so able) the voting rights of the directors or equivalent appointed by the Parent or any wholly owned member of the WPP Group to the board of directors of a Non-Wholly Owned Target Subsidiary, are not exercised so as to approve any of the matters referred to in clauses 7.1(b)(i) to 7.1(b)(xvi) in respect of such Non-Wholly Owned Target Subsidiary or to approve any matter outside of the ordinary course of the day to day business of such Non-Wholly Owned Target Subsidiary.
7.3 Clauses 7.1 and 7.2 shall not operate to restrict or prevent:
(a) any action taken at the request of the Purchaser or with its prior approval;
(b) any matter reasonably undertaken by any member of the Target Group in an Emergency Situation with the intention of minimising any adverse effect of the Emergency Situation on any member of the Target Group (and of which the Purchaser will be notified as soon as practicable);
(c) any action taken in accordance with any contract or arrangement entered into by any member of the Target Group before the date of this agreement;
(d) any act or conduct which any member of the Target Group is required to take, or omit to take, as a result of, or in order to comply with, any applicable law or regulation of any applicable Regulatory Authority;
(e) any action that is Permitted Leakage;
(f) any action that is required, necessary or desirable in connection with the Kantar Reorganisation and carried out in accordance with the applicable provisions of this agreement;
(g) any action or matter required, necessary or desirable to give effect to the EY Acquisition Steps Paper or any provision of this agreement or another Transaction Document, and in each case carried out in accordance with the applicable provisions of this agreement;
(h) any action that complies with Schedule 9; or
(i) any action that is required, necessary or desirable in connection with clause 23 or otherwise in order for the Target Group to be separated from the Retained Group and to be able to operate its business in all material respects on a standalone basis without reliance on the Retained Group.
7.4 The Purchaser Purchasers shall be deemed to have given its approval agreed to a matter referred to in clause 7.1 or clause 7.2 (as applicable) unless it notifies the Parent of its objection and its reasons for objecting within five Business Days after receiving a written request for approval from the Parentproposed action.
7.5 6.3. The Parent shallSeller shall procure that prior to or on the Completion Date, as soon as practicable after the date of this agreement (or in accordance with such timing as indicated in the EY Acquisition Steps Paper), undertake such reorganisation of the relevant part of the WPP Group and shall prepare and execute, or procure the preparation and execution of, any document, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 0.1 to 0.8 (inclusive) of the EY Acquisition Steps Paper in order to create the “Simplified transaction structure pre-completion” shown in the EY Acquisition Steps Paper.
7.6 The Parties undertake to ensure that all entities which are to be set up for the purposes of implementing the EY Acquisition Steps Paper (including for the avoidance of any doubt, New US GP Co 1, New US GP Co 2 and New US GP Co 3 (each as referred to in the EY Acquisition Steps Paper) which are incorporated in the Purchaser’s Group prior to the transfer into the WPP Group pursuant to Steps 25, 27 and 29 of the EY Acquisition Steps Paper) undertake no other activitiesShares to the Purchasers the existing management services agreement between the Group Companies and the Seller shall be terminated. On the Completion Date, acquire no other assets the Seller will confirm and incur no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation.
7.7 Following the satisfaction acknowledge, upon receipt of the Conditions in accordance with clause 6 and in any event prior to First Completionat the Completion Date outstanding amounts under such management services agreement, the Purchaser shall prepare and execute, or procure the preparation and execution of, any documents, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 1 to 8 (inclusive) and Step 14 that none of the EY Acquisition Steps Paper.
7.8 Immediately prior to First Completion, Group Companies has any obligation(s) vis á vis the Purchaser shall procure that each of US HoldCo A LLC and US HoldCo B LLC (as referred to in the EY Acquisition Steps Paper) and the Parent shall procure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper) prepare and execute Seller or any documents, and perform all other acts and things, in each case as are required or necessary in order to implement the mergers pursuant to Step 34 member of the EY Acquisition Steps Paper. The Parties agree that the Parent shall, following implementation of Step 34 of the EY Acquisition Steps Paper and in any event prior to First Completion, procure that US HoldCo B LLC, US HoldCo A LLC and other members of the WPP Group, and the Purchaser shall procure that the officers of US HoldCo B LLC and US HoldCo A LLC prepare and execute any documents, and perform all other acts and things, in each case as are required, necessary or desirable in order for US HoldCo B LLC and US HoldCo A LLC to declare, make and pay the distributions pursuant to Steps 35 and 36 of the EY Acquisition Steps Paper, and transfer US HoldCo A LLC as contemplated in Steps 37 and 38 of the EY Acquisition Steps Paper.
7.9 Following the satisfaction of the Conditions in accordance with clause 6 and in any event prior to First Completion, the Parent shall prepare and execute, or procure the preparation and execution of, any documents and shall perform or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 26, 28, 30, 31, 32 and 33 of the EY Acquisition Steps Paper.
7.10 The Purchaser undertakes to ensure that each of US HoldCo A LLC and US HoldCo B LLC, and the Parent undertakes to ensure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper), in each case will be, at the time of implementation of Step 34 of the EY Acquisition Steps Paper, companies set up for the purposes of the Transaction and its financing in accordance with the EY Acquisition Steps Paper and the Purchaser Finance Documents and, except for the actions contemplated to be taken by them pursuant to the EY Acquisition Steps Paper and the Purchaser Finance Documents, will have undertaken no other activities, acquired no other assets and incurred no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation.
7.11 Until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall:
(a) procure (in so far as it is able) that subject to applicable law, the Purchaser and its agents and representatives are, during normal business hours and on reasonable notice, given reasonable access to the Senior Employees and the books and records of the Target Group to the extent reasonably required by the Purchaser for the purpose of planning for its investment in the Target Group and on and with effect from First Completion (or Deferred Completion, as applicable) provided that this obligation shall not extend to allow access to information reasonably regarded by the Parent as confidential to the Parent or the Retained Group; and
(b) cooperate and assist, and shall use commercially reasonable efforts to procure (in so far as it is able) that the Sellers, the Deferred Sellers, the Target Group and their respective directors, officers, employees, accountants and other professional advisers and representatives (at the Purchaser Group’s sole expense) provide relevant information to, and cooperate and assist (in each case to the extent such cooperation and assistance is legally permissible and does not interfere unreasonably with the operation of the Sellers, the Deferred Sellers or the Target Group, as applicable) with, the PurchaserSeller’s Group and with any of its prospective debt financing providers, rating agencies and other professional advisers and representatives in connection with and in order to facilitate the debt financing of the Transaction (which is intended to include loan and debt securities financings) and any related debt syndication, consisting of, but not limited to: (i) participating in a reasonable number of lender, investor and rating agency meetings, road shows, due diligence sessions and drafting sessions; (ii) assisting with the preparation of credit rating agency presentations, bank information memoranda, offering or private placement memoranda, prospectuses and other similar offering documents; (iii) using commercially reasonable efforts in providing customary due diligence materials, ‘know your customer’ (KYC) documents and any other customary documents and certificates; (iv) providing customary audited annual and reviewed interim financial statements (including the Accounts and equivalent accounts for the preceding two financial years) and audit reports (and provided, in each case, that the Purchaser’s Group and any of its prospective debt financing providers, rating agencies and other professional advisers and representatives (as applicable) execute and deliver any hold harmless letters that may be required by the Parent’s or the Target Group’s advisers in respect thereof); (v) providing any other information that is customarily included or provided in an offering of high yield debt securities under Rule 144A and Regulation S under the US Securities Act of 1933 and, with respect to financial statements and other financial information, as may be required to receive SAS 72-style comfort (including negative assurance) from an independent accountant; and (vi) consenting to the use of the Target Group’s logos in connection with the debt financing (provided such logos are used solely in a manner that is not intended to harm the reputation or goodwill of the Target Group).
7.12 The Parent shall procure that each Tax-Consolidated Target Group Company ceases, with effect from a time no later than the First Completion Date management services agreement or the relevant Deferred Completion Date (as applicable) for that Tax-Consolidated Target Group Company, to be a member of any Tax Consolidation of which it is a member as at the date of this agreement, in each case if and to the extent that the same has not already occurred by that time by operation of law or otherwisetermination thereof.
7.13 With effect from the date of this agreement:
(a) the Parent shall:
(i) use all commercially reasonable efforts to procure (in so far as it is able) that each relevant member of the WPP Group obtains all consents, approvals or authorisations from any third parties that are reasonably required so as to allow the relevant members of the Retained Group and the relevant members of the Target Group to each remain in occupation of, and continue to operate their respective business out of, the Co-Location Properties following First Completion;
(ii) (in obtaining all consents, approvals or authorisations pursuant to clause 7.13(a)(i) above) use all reasonably commercial efforts to procure that the annual rent that will be payable by each member of the Target Group (in respect of their shared occupation of the Co-Location Properties (or any parts of them) with the relevant member of the Retained Group) following First Completion, shall not be materially higher than the annual rent payable by them on the date of this agreement provided that if a third party landlord increases th
Appears in 1 contract