PRE-COMPLETION. New Debt Financing 6.1 Without prejudice to the Purchaser's obligations to fund the Completion Amount, in the period prior to Completion the Seller shall 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 the New Finance Documents, or the arrangement of any (additional) financing by the Purchaser in relation to the 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 its Representatives, at the Purchaser's cost and expense: (a) reasonable access to the 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 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 Purchaser 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 (vii) delivering such other information as reasonably requested by the Purchaser or the New Debt Financing Sources required for the satisfaction on a timely basis of all the conditions precedent to the New Debt Financing; and (c) all reasonable cooperation including: (i) taking reasonable steps to facilitate the granting of guarantees and the pledging, granting of security interests in, and otherwise granting of liens on, the assets of the Target Group Companies, the JV Participation or the Business which are conditions to the availability of the New Debt Financing pursuant to 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 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 avoidance of doubt excluding "DSM" and the DSM Logo and in accordance with Clause 12 (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 or its Affiliates, or their respective reputation or goodwill; (v) taking the relevant resolutions authorizing the 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 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 extent reasonably requested by the Purchaser, but only with effect from the Completion, provided that: (d) 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 access, information and/or cooperation requested must not unreasonably disturb or interfere with the normal operations of the Target Group Companies or breach any applicable laws or regulations; (f) the 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 Business; (i) the Purchaser shall have no rights under this Clause 6.1 whilst it is in material breach of this Agreement; (j) nothing in 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 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 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 (i) with the written consent of the Purchaser (which shall not be unreasonably withheld, conditioned or delayed and shall in any event be deemed to be given if after due notice no response is received within five (5) Business Days of a written request delivered by the Seller), (ii) to the extent explicitly set out in Schedule 24 (Permitted Actions) or elsewhere in this Agreement, (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 12, no Target Group Company, the JV Company (to the extent within the Seller's control) nor any Selling Entity, shall durin
Appears in 1 contract
Sources: Purchase Agreement (Avient Corp)
PRE-COMPLETION. New Debt Financing
6.1 Without prejudice 7.1 Seller Parent and Seller’s Obligations in Relation to the Purchaser's obligations Conduct of Business
(a) Subject to fund the Completion AmountClause 7.2, in the period prior to Completion each of the Seller shall use reasonable best efforts to, Parent and shall cause its Affiliates and their personnel and representatives (including legal and accounting representatives) to use reasonable best efforts to, procure thatthe Seller shall, to the extent reasonably necessary or customary, enable the Purchaser to comply with its obligations permissible under this Agreement to satisfy the remaining conditions precedent to closing set out in the New Finance Documents, or the arrangement of any (additional) financing by the Purchaser in relation to the 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 applicable law and its Representatives, at the Purchaser's cost and expense:
(a) reasonable access to the 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 preserve the arrangement value of any New Debt Financingthe DivestCo Business, includingprocure that from the Original SPA Date until Completion:
(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 each 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 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 Purchaser 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
(vii) delivering such other information as reasonably requested by the Purchaser or the New Debt Financing Sources required for the satisfaction on a timely basis of all the conditions precedent to the New Debt Financing; and
(c) all reasonable cooperation including:
(i) taking reasonable steps to facilitate the granting of guarantees and the pledging, granting of security interests in, and otherwise granting of liens on, the assets of the Target Group Companies, the JV Participation or the Business which are conditions to the availability of the New Debt Financing pursuant to 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 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 avoidance of doubt excluding "DSM" and the DSM Logo and in accordance with Clause 12 (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 or its Affiliates, or their respective reputation or goodwill;
(v) taking the relevant resolutions authorizing the 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 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 extent reasonably requested by the Purchaser, but only with effect from the Completion, provided that:
(d) 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 access, information and/or cooperation requested must not unreasonably disturb or interfere with the normal operations of the Target Group Companies or breach any applicable laws or regulations;
(f) the 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 Business;
(i) the Purchaser shall have no rights under this Clause 6.1 whilst it is in material breach of this Agreement;
(j) nothing in 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 shall conduct 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 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 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 DivestCo Business in all material respects in the ordinary course consistent with past practice.
6.3 Subject as conducted prior to Clause 6.4 the Original SPA Date and all applicable lawsno Seller Group Company shall, without the Seller shall ensure that, except (i) with the prior written consent of the Purchaser (which shall such consent not to be unreasonably withheldwithheld or delayed, conditioned provided that each of the Seller Parent and the Seller shall provide the Purchaser with any information reasonably requested by the Purchaser in order to consider such request for consent), do or delayed agree to do anything which is outside the ordinary course of the DivestCo Business as conducted prior to the Original SPA Date; and
(ii) each Seller Group Company shall maintain in force all Insurance Policies that such member of the Seller’s Group maintains as at the Original SPA Date in all material respects on the same terms and at substantially the same levels of cover as prevail at the Original SPA Date.
(b) From the Original SPA Date until Completion and without prejudice to the generality of Clause 7.1(a), each of the Seller Parent and the Seller shall ensure that none of the acts or matters listed in Schedule 4 (Consent Matters) shall take place without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed, provided that each of the Seller Parent and the Seller shall provide the Purchaser with any information reasonably requested by the Purchaser in order to consider such request for consent) because the Parties agree that the occurrence of any of the acts or matters listed in Schedule 4 (Consent Matters) will adversely impact the value of the DivestCo Business.
(c) Each of the Seller Parent and the Seller shall consult with the Purchaser in good faith as soon as reasonably practicable and, if and to the extent reasonably practicable, in any event be deemed prior to be given if after due notice no response is received within five (5) Business Days the Seller Parent, the Seller or any other member of a written request delivered by the Seller)’s Group taking any material steps in respect of the DivestCo Business, in connection with or in response to the presence, transmission or threat of COVID-19 or any evolution thereof, and/or any mandatory or advisory restriction issued, or action ordered or threatened by, any public authority, regulatory body or government in connection therewith.
(iid) Each of the Seller Parent and the Seller shall afford the Purchaser such access and information as it reasonably requires in connection with the evaluation, negotiation, financing, implementation and/or consummation of the Transaction (including, to the extent explicitly set out in Schedule 24 (Permitted Actionslegally permissible, by providing financial data about the DivestCo Business) or elsewhere in this Agreementand, (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 12, no Target Group Company, the JV Company (to the extent within legally permissible, its preparations for any projects to be carried out in relation to the Seller's controlDivestCo Business following Completion (including the adoption of any new policies or contractual arrangements). Each of the Parties acknowledge that access to and provision of information may be delayed or limited in the circumstances, having regard to the impact of COVID-19, provided that any such delays and limitations shall be mitigated by the Seller Parent and the Seller so far as reasonably possible and virtual access (including to employees) nor any Selling Entity, shall durinbe provided to the Purchaser or its representatives as soon as reasonably practicable to the extent possible if physical access is not available.
Appears in 1 contract
PRE-COMPLETION. New Debt Financing
6.1 Without prejudice to the Purchaser's obligations to fund the Completion Amount, in the period prior to Completion the Seller shall 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 the New Finance Documents, or the arrangement of any (additional) financing by the Purchaser in relation to the 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 its Representatives, at the Purchaser's cost and expense:
(a) reasonable access to the 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 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 Purchaser 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
(vii) delivering such other information as reasonably requested by the Purchaser or the New Debt Financing Sources required for the satisfaction on a timely basis of all the conditions precedent to the New Debt Financing; and
(c) all reasonable cooperation including:
(i) taking reasonable steps to facilitate the granting of guarantees and the pledging, granting of security interests in, and otherwise granting of liens on, the assets of the Target Group Companies, the JV Participation or the Business which are conditions to the availability of the New Debt Financing pursuant to 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 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 avoidance of doubt excluding "DSM" and the DSM Logo and in accordance with Clause 12 (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 or its Affiliates, or their respective reputation or goodwill;
(v) taking the relevant resolutions authorizing the 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 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 extent reasonably requested by the Purchaser, but only with effect from the Completion, provided that:
(d) 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 access, information and/or cooperation requested must not unreasonably disturb or interfere with the normal operations of the Target Group Companies or breach any applicable laws or regulations;
(f) the 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 Business;
(i) the Purchaser shall have no rights under this Clause 6.1 whilst it is in material breach of this Agreement;
(j) nothing in 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 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 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 (i) with the written consent of the Purchaser (which shall not be unreasonably withheld, conditioned or delayed and shall in any event be deemed to be given if after due notice no response is received within five (5) Business Days of a written request delivered by the Seller), (ii) to the extent explicitly set out in Schedule 24 (Permitted Actions) or elsewhere in this Agreement, (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 12, no Target Group Company, the JV Company (to the extent within the Seller's control) nor any Selling Entity, shall durinduring 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. New Debt Financing
6.1 Without prejudice to 5.1 Until Completion, the Purchaser's obligations to fund the Completion Amount, in the period prior to Completion Buyer and the Seller shall use reasonable best efforts cooperate in good faith in relation to, so far as permissible by applicable Law and shall cause its Affiliates and their personnel and representatives (including legal and accounting representatives) to use reasonable best efforts to, procure that, without causing material interruption to the extent reasonably necessary or customary, enable business and operations of the Purchaser to comply with its obligations under this Agreement to satisfy the remaining conditions precedent to closing set out in the New Finance Documents, or the arrangement of any (additional) financing by the Purchaser in relation to the 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 its Representatives, at the Purchaser's cost and expenseGroup:
(a) reasonable access the provision to the senior management team Buyer of the Target Group Companies, with appropriate seniority documents and expertise, at reasonable times and upon reasonable notice, to assist information 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 relation 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 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 Purchaser or Buyer; and
(b) the New Debt Financing Sources, arrangement of discussions between the Buyer and such senior employees and officers of the Group as the Buyer may reasonably request in each case relation to the extent 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 (iprovided 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) such documents are required no later than one calendar month in advance of Completion. The Buyer will provide to be delivered 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 authorization of 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 New Debt Financing or any debt being issued in lieu of all or a portion of the New Debt Financing Palm Insurance Loan Agreement, 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 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 Completion occurring or only with effect from Completion and (iii) do not result its progress in any costs or Liabilities for any member of obtaining the Seller's Group;consents referred to in this Clause 5.6.
5.7 Until Completion, the Seller shall procure that: 11/66881024_3419
(via) promptly, the business of each Group Company is carried on in material compliance with Laws applicable to the Group Companies 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 substantially the debt securities has reasonably requested at least ten (10) Business Days same manner as its businesses have been carried on during the 12 month period 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 Actdate of this Agreement; and
(viib) delivering no Group Company shall do any of the things specified in Schedule 2 (Reserved Matters ), or give any binding undertaking to do any such other information as reasonably requested by things.
5.8 Nothing in Clause 5 shall impose any obligation on the Purchaser Seller to prevent or the New Debt Financing Sources restrict any Group Company from doing or omitting to do anything:
(a) required for the satisfaction on a timely basis performance of all the conditions precedent any contract entered into prior to the New Debt Financing; and
(c) all reasonable cooperation including:
(i) taking reasonable steps to facilitate the granting of guarantees and the pledging, granting of security interests in, and otherwise granting of liens on, the assets of the Target Group Companies, the JV Participation or the Business which are conditions to the availability of the New Debt Financing pursuant to 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 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 avoidance of doubt excluding "DSM" and the DSM Logo and in accordance with Clause 12 (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 or its Affiliates, or their respective reputation or goodwill;
(v) taking the relevant resolutions authorizing the 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 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 extent reasonably requested by the Purchaser, but only with effect from the Completion, provided that:
(d) 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 access, information and/or cooperation requested must not unreasonably disturb or interfere with the normal operations of the Target Group Companies or breach any applicable laws or regulations;
(f) the 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 Business;
(i) the Purchaser shall have no rights under this Clause 6.1 whilst it is in material breach date of this Agreement;
(jb) nothing required in this Clause 6.1 will require order to comply with any member of the Seller's Group applicable Law or as required by 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 AgreementAuthority;
(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 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 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 (ic) with the written consent of the Purchaser (which shall not to be unreasonably withheld, conditioned or delayed delayed, and shall in any event to be deemed to be have been given if after due notice no response is received within five (5) Business Days of the Buyer does not reply promptly to a written request delivered by which the Seller), (ii) Seller has made clear relates to a matter which requires it to take immediate or prompt steps having regard to the extent explicitly set out in Schedule 24 (Permitted Actions) or elsewhere in this Agreementexpected consequences, (iii) to comply with any existing obligation as Fairly Disclosed in the Disclosed Information prior to the Signing Protocol Date, or (iv) provided such request is made in accordance with Clause 1229 (Communications) and also made in writing by email to ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇, no Target Group Companyor at the written request of, the JV Company Buyer; or
(to d) required by any Transaction Document.
5.9 The Seller shall notify the extent within Buyer as soon as reasonably practicable following the Seller becoming aware of any breach of Clause 5.7 by the Seller's control) nor any Selling Entity, shall durin.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Share Capital (BGC Partners, Inc.)
PRE-COMPLETION. New Debt Financing5.1 The provisions of Schedule 5 shall apply.
6.1 Without prejudice 5.2 Nothing in this clause 5 or Schedule 5 shall operate so as to restrict or prevent the Purchaser's obligations to fund following (of which the Completion Amount, in the period prior to Completion Buyer will be notified as soon as reasonably practicable so far as it is lawful for the Seller shall use reasonable best efforts toto do so and would not cause any Group Company to breach any contract, 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 law or customary, enable the Purchaser to comply with its obligations under this Agreement to satisfy the remaining conditions precedent to closing set out in the New Finance Documents, or the arrangement of any (additional) financing by the Purchaser in relation to the 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 its Representatives, at the Purchaser's cost and expense:regulation):
(a) reasonable access to the senior management team of the Target Group Companiesany matter reasonably undertaken in an emergency or disaster situation, with appropriate seniority and expertise, at reasonable times and upon reasonable notice, to assist in preparation for and participate in a reasonable number the intention 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 minimising 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 Selleradverse effect thereof;
(b) provision the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into prior to the date of this Agreement (including the Reinsurance Contracts), provided that any such information regarding contract or arrangement has been disclosed to the businesses and affairs Buyer prior to the date of this Agreement;
(c) the carrying out of any act or the undertaking of any matter necessary (in the reasonable belief of the Target Seller or the relevant Group Companies as is readily available and which the Purchaser may reasonably require Company) 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 ensure continued 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 Applicable Laws (including drafts of the Annual Financial Statements and Interim Financial Statements) any Applicable Laws 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"prudential matters);
(iid) customary and readily available information committing to the extent any Regulatory Authority to carry out any act or undertake any matter requested or required by the Purchaser it and the New Debt Financing Sources carrying out of any act resulting from such commitment, provided that before any such commitment or undertaking is given, the Buyer is notified of the matter and if reasonably practicable afforded an opportunity 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 participate in connection relevant communications with the New Debt Financing Regulatory Authority (unless the Regulatory Authority does not permit such notification or any debt being issued in lieu of all or a portion of the New Debt Financing, including providing records, data or other information 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 Purchaser 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
(vii) delivering such other information as reasonably requested by the Purchaser or the New Debt Financing Sources required for the satisfaction on a timely basis of all the conditions precedent to the New Debt Financing; and
(c) all reasonable cooperation including:
(i) taking reasonable steps to facilitate the granting of guarantees and the pledging, granting of security interests in, and otherwise granting of liens on, the assets of the Target Group Companies, the JV Participation or the Business which are conditions to the availability of the New Debt Financing pursuant to 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 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 avoidance of doubt excluding "DSM" and the DSM Logo and in accordance with Clause 12 (Intellectual Property Rightsparticipation)) 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 or its Affiliates, or their respective reputation or goodwill;
(v) taking the relevant resolutions authorizing the 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 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 extent reasonably requested by the Purchaser, but only with effect from the Completion, provided that:
(d) 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 access, information and/or cooperation requested must not unreasonably disturb or interfere with the normal operations performance of the Target Group Companies or breach any applicable laws or regulationsobligation under any Share Purchase Documents;
(f) any matter undertaken at the access, information and/or cooperation requested must not require written request of the disclosure of any personal data or commercially sensitive information;Buyer; or
(g) the Purchaser making by a Group Company of any payment of Taxation to a Tax Authority.
5.3 Without prejudice to the generality of this clause 5, prior to Completion the Seller shall, and shall use all its commercially reasonable endeavours to procure that the Group Companies shall, subject to Applicable Laws and any obligations they may have under existing agreements with third parties, allow the Buyer and its Representatives must comply with all applicable securityagents, health upon reasonable notice, reasonable access to, and safety to take copies of, the books, records, and other requirements communicated documents and reasonable access to them;individuals of or relating in whole or in part to the Group, provided that the obligations of the Seller under this clause shall not extend to allowing access to information which is:
(ha) reasonably regarded by 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 Seller as confidential to the Business;
(i) the Purchaser shall have no rights under this Clause 6.1 whilst it is in material breach of this Agreement;
(j) nothing in this Clause 6.1 will require any member activities of the Seller's ’s Group; or
(b) commercially sensitive information of the Group or any Target Group Company to incur any Liability Companies if such information cannot be shared with the Buyer 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 compliance 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 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 breachApplicable Laws.
6.2 Subject to Clause 6.4 and all applicable 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 (i) with the written consent of the Purchaser (which shall not be unreasonably withheld, conditioned or delayed and shall in any event be deemed to be given if after due notice no response is received within five (5) Business Days of a written request delivered by the Seller), (ii) to the extent explicitly set out in Schedule 24 (Permitted Actions) or elsewhere in this Agreement, (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 12, no Target Group Company, the JV Company (to the extent within the Seller's control) nor any Selling Entity, shall durin
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