Common use of Definitive Agreements Clause in Contracts

Definitive Agreements. The parties will begin to prepare drafts of the legal documents necessary to effect the Transaction and the Financing. The parties shall use their good faith efforts to complete and be in a position to execute definitive agreements relating to the Transaction and the Financing (the “Definitive Agreements”) no later than 14 days following the retention of the Agent (the “Retention Date”) or such later time and date as may be mutually agreed to by the parties in writing. Upon execution of the LOI by both parties, and subject to prior approval of the TSX Venture Exchange, BLL shall advance to BLL’s legal counsel, the sum of CAD$250,000 to be held in trust as a refundable deposit in favour of Fox UK. If the Transaction does not close as a result of BLL’s termination of the Transaction, then $225,000 shall be returned to BLL and Fox UK shall be entitled to receive a $25,000 termination fee from BLL. Closing of the Financing would be targeted to occur 30 days following the Retention Date of the Agent or, before November 30, 2008. Closing of the Transaction would be targeted to occur 60 days following the Retention Date or such other time and date, earlier or later, as may be mutually agreed to by the parties, the whole subject to regulatory approval. The Definitive Agreements shall be mutually acceptable to Fox UK, Fox US and BLL and shall be substantially in the form customarily used for such a document, including customary representations and warranties and conditions. Without limitation, the Definitive Agreements shall provide that the obligations to complete the Transaction shall be conditional on, among other things: (a) Fox UK having prepared and provided audited financial statements and reports compliant with National Instrument 51-101 respecting Standards of Disclosure for Oil and Gas Activities; (b) receipt by the parties of all required third party approvals; (c) the parties having used their good faith efforts to prepare all necessary disclosure and filing documentation in respect of the Transaction and receipt by the parties of all regulatory approvals (including relevant stock exchanges); (d) required approval by the stakeholders of BLL, Fox UK and Fox US; (e) approval by the board of directors of BLL, Fox UK and Fox US; (f) as for the Transaction, completion by Fox UK and Fox US of a satisfactory due diligence on BLL pursuant to paragraph 8 of this Letter Agreement; (g) as for the Transaction, completion by BLL of a satisfactory due diligence on Fox UK and Fox US pursuant to paragraph 8 of this Letter Agreement; and (h) if required by the TSX Venture Exchange, a qualified Sponsor (as defined under the TSX Venture Exchange Manual) shall accept to sponsor the Transaction and shall file with the TSX Venture Exchange at its entire satisfaction a Sponsor Report (as defined under the TSX Venture Exchange Manual).

Definitive Agreements. The legal counsel of Transfer and Thermal will collectively draft a definitive contribution agreement providing for the Contribution and the Spin-Off, a definitive merger agreement providing for the Merger and a definitive stock purchase agreement providing for the OEM Stock Sale consistent with this letter containing representations, warranties, agreements, conditions and non-compete covenants of the type normally associated with such transactions, including without limitation, customary representations and warranties that will expire at Closing and a five-year noncompete binding upon Transfer with respect to G&Os business and a five-year noncompete binding upon Thermal with respect to the Business; provided, that the foregoing non-competes will have customary exceptions for ownership of publicly traded entities that engage in the restricted business and the acquisition and subsequent ownership and operation by Transfer or Thermal, as applicable, of any diversified company having attributes that do not exceed certain mutually agreed to thresholds and certain other mutually agreed to exceptions. The parties will begin negotiate in good faith with respect to prepare drafts other provisions that may be appropriate in the circumstances, including possible provisions for the registration of stock received in the Merger by Thermals employee benefit plans. Conditions. The parties obligations to consummate the Transaction pursuant to the Definitive Agreements would be subject to a number of customary conditions, including but not necessarily limited to the following, as appropriate: all necessary corporate actions shall have been taken; the satisfaction of all governmental conditions or obligations, including without limitation pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the obtaining of any other agreed to third-party consents or approvals necessary for the consummation of the legal documents necessary transactions contemplated herein, including without limitation the consent of Thermals and Transfers lenders; all assets (other than intellectual property), including the Xxxxxxx Facility, owned by Transfer and used primarily by G&O, and all intellectual property owned by Transfer and used exclusively in the business of G&O, shall have been transferred to effect G&O prior to the effective time of the OEM Stock Sale; the receipt of a ruling from the United States Internal Revenue Service or, if acceptable to both parties, an opinion of Ernst & Young LLP regarding the Transaction and in form and substance reasonably satisfactory to Thermal and, in respect of the Financing. The parties Merger, to Transfer, including a ruling that the Contribution, the Spin-Off and the Merger are tax-free as transactions described in Sections 355 and 368 of the Code; Transfers shares shall use their good faith efforts be listed on the Nasdaq Stock Market or a mutually acceptable stock exchange to complete and be in a position to execute definitive agreements determined as of the effective time of the Closing; each partys accountants shall have provided two customary comfort letters, one dated as of the date the Form S-4 relating to the Transaction ("Form S-4") filed with the Securities and the Financing Exchange Commission (the “Definitive Agreements”"SEC") no later than 14 days following the retention is declared effective and one dated as of the Agent date of the Closing (the “Retention "Closing Date”"); the Form S-4 shall have been declared effective prior to the mailing of the disclosure document constituting a part thereof by each of Thermal and Transfer to their respective shareholders; Newco shall have $6.3 million in cash as of consummation of the Spin-Off and net working capital (assuming a $2.0 million increase in cash) consistent with past practice in light of its results of operations from December 31, 2003 to the Closing Date; Thermal shall have implemented, at its option, a customer sponsored program to factor NAPAs accounts receivable to Thermal, estimated to be $2.5 million; no material adverse change shall have occurred with respect to the Business or G&O, as applicable, in any case arising from or relating to a breach by the applicable party of any of its covenants or representations or warranties in the Definitive Agreements that results from an act of or omission by such later time breaching party; Transfer shall have delivered to Thermal audited financial statements of G&O for the 2003 calendar year and date through June 30, 2004 (the "G&O Financial Statements"); Thermal shall have delivered to Transfer financial statements, including a balance sheet, prepared by Thermal for the Business for the period ending as may be close as practicable to the Closing Date; and at a mutually agreed to by time prior to the parties in writing. Upon execution of the LOI by both partiesClosing, Thermal and subject Transfer shall have delivered to prior approval of the TSX Venture Exchange, BLL shall advance each other supporting information that confirms certain financial summaries previously provided to BLL’s legal counsel, the sum of CAD$250,000 to be held in trust as a refundable deposit in favour of Fox UK. If the Transaction does not close as a result of BLL’s termination of the Transaction, then $225,000 shall be returned to BLL and Fox UK shall be entitled to receive a $25,000 termination fee from BLL. Closing of the Financing would be targeted to occur 30 days following the Retention Date of the Agent or, before November 30, 2008. Closing of the Transaction would be targeted to occur 60 days following the Retention Date or such other time and date, earlier or later, as may be mutually agreed to by the parties, the whole subject to regulatory approval. The Definitive Agreements shall be mutually acceptable to Fox UK, Fox US and BLL and shall be substantially in the form customarily used for such a document, including customary representations and warranties and conditions. Without limitation, the Definitive Agreements shall provide that the obligations to complete the Transaction shall be conditional on, among other things: (a) Fox UK having prepared and provided audited financial statements and reports compliant with National Instrument 51-101 respecting Standards of Disclosure for Oil and Gas Activities; (b) receipt by the parties of all required third party approvals; (c) the parties having used their good faith efforts to prepare all necessary disclosure and filing documentation in respect of the Transaction and receipt by the parties of all regulatory approvals (including relevant stock exchanges); (d) required approval by the stakeholders of BLL, Fox UK and Fox US; (e) approval by the board of directors of BLL, Fox UK and Fox US; (f) as for the Transaction, completion by Fox UK and Fox US of a satisfactory due diligence on BLL pursuant to paragraph 8 of this Letter Agreement; (g) as for the Transaction, completion by BLL of a satisfactory due diligence on Fox UK and Fox US pursuant to paragraph 8 of this Letter Agreement; and (h) if required by the TSX Venture Exchange, a qualified Sponsor (as defined under the TSX Venture Exchange Manual) shall accept to sponsor the Transaction and shall file with the TSX Venture Exchange at its entire satisfaction a Sponsor Report (as defined under the TSX Venture Exchange Manual)each other.

Definitive Agreements. The legal counsel of Transfer and Thermal will collectively draft a definitive contribution agreement providing for the Contribution and the Spin-Off, a definitive merger agreement providing for the Merger and a definitive stock purchase agreement providing for the OEM Stock Sale consistent with this letter containing representations, warranties, agreements, conditions and non-compete covenants of the type normally associated with such transactions, including without limitation, customary representations and warranties that will expire at Closing and a five-year noncompete binding upon Transfer with respect to G&O's business and a five-year noncompete binding upon Thermal with respect to the Business; provided, that the foregoing non-competes will have customary exceptions for ownership of publicly traded entities that engage in the restricted business and the acquisition and subsequent ownership and operation by Transfer or Thermal, as applicable, of any diversified company having attributes that do not exceed certain mutually agreed to thresholds and certain other mutually agreed to exceptions. The parties will begin negotiate in good faith with respect to prepare drafts other provisions that may be appropriate in the circumstances, including possible provisions for the registration of stock received in the Merger by Thermal's employee benefit plans. Conditions. The parties' obligations to consummate the Transaction pursuant to the Definitive Agreements would be subject to a number of customary conditions, including but not necessarily limited to the following, as appropriate: all necessary corporate actions shall have been taken; the satisfaction of all governmental conditions or obligations, including without limitation pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the obtaining of any other agreed to third-party consents or approvals necessary for the consummation of the legal documents necessary transactions contemplated herein, including without limitation the consent of Thermal's and Transfer's lenders; all assets (other than intellectual property), including the Xxxxxxx Facility, owned by Transfer and used primarily by G&O, and all intellectual property owned by Transfer and used exclusively in the business of G&O, shall have been transferred to effect G&O prior to the effective time of the OEM Stock Sale; the receipt of a ruling from the United States Internal Revenue Service or, if acceptable to both parties, an opinion of Ernst & Young LLP regarding the Transaction and in form and substance reasonably satisfactory to Thermal and, in respect of the Financing. The parties Merger, to Transfer, including a ruling that the Contribution, the Spin-Off and the Merger are tax-free as transactions described in Sections 355 and 368 of the Code; Transfer's shares shall use their good faith efforts be listed on the Nasdaq Stock Market or a mutually acceptable stock exchange to complete and be in a position to execute definitive agreements determined as of the effective time of the Closing; each party's accountants shall have provided two customary comfort letters, one dated as of the date the Form S-4 relating to the Transaction ("Form S-4") filed with the Securities and the Financing Exchange Commission (the “Definitive Agreements”"SEC") no later than 14 days following the retention is declared effective and one dated as of the Agent date of the Closing (the “Retention "Closing Date”"); the Form S-4 shall have been declared effective prior to the mailing of the disclosure document constituting a part thereof by each of Thermal and Transfer to their respective shareholders; Newco shall have $6.3 million in cash as of consummation of the Spin-Off and net working capital (assuming a $2.0 million increase in cash) consistent with past practice in light of its results of operations from December 31, 2003 to the Closing Date; Thermal shall have implemented, at its option, a customer sponsored program to factor NAPA's accounts receivable to Thermal, estimated to be $2.5 million; no material adverse change shall have occurred with respect to the Business or G&O, as applicable, in any case arising from or relating to a breach by the applicable party of any of its covenants or representations or warranties in the Definitive Agreements that results from an act of or omission by such later time breaching party; Transfer shall have delivered to Thermal audited financial statements of G&O for the 2003 calendar year and date through June 30, 2004 (the "G&O Financial Statements"); Thermal shall have delivered to Transfer financial statements, including a balance sheet, prepared by Thermal for the Business for the period ending as may be close as practicable to the Closing Date; and at a mutually agreed to by time prior to the parties in writing. Upon execution of the LOI by both partiesClosing, Thermal and subject Transfer shall have delivered to prior approval of the TSX Venture Exchange, BLL shall advance each other supporting information that confirms certain financial summaries previously provided to BLL’s legal counsel, the sum of CAD$250,000 to be held in trust as a refundable deposit in favour of Fox UK. If the Transaction does not close as a result of BLL’s termination of the Transaction, then $225,000 shall be returned to BLL and Fox UK shall be entitled to receive a $25,000 termination fee from BLL. Closing of the Financing would be targeted to occur 30 days following the Retention Date of the Agent or, before November 30, 2008. Closing of the Transaction would be targeted to occur 60 days following the Retention Date or such other time and date, earlier or later, as may be mutually agreed to by the parties, the whole subject to regulatory approval. The Definitive Agreements shall be mutually acceptable to Fox UK, Fox US and BLL and shall be substantially in the form customarily used for such a document, including customary representations and warranties and conditions. Without limitation, the Definitive Agreements shall provide that the obligations to complete the Transaction shall be conditional on, among other things: (a) Fox UK having prepared and provided audited financial statements and reports compliant with National Instrument 51-101 respecting Standards of Disclosure for Oil and Gas Activities; (b) receipt by the parties of all required third party approvals; (c) the parties having used their good faith efforts to prepare all necessary disclosure and filing documentation in respect of the Transaction and receipt by the parties of all regulatory approvals (including relevant stock exchanges); (d) required approval by the stakeholders of BLL, Fox UK and Fox US; (e) approval by the board of directors of BLL, Fox UK and Fox US; (f) as for the Transaction, completion by Fox UK and Fox US of a satisfactory due diligence on BLL pursuant to paragraph 8 of this Letter Agreement; (g) as for the Transaction, completion by BLL of a satisfactory due diligence on Fox UK and Fox US pursuant to paragraph 8 of this Letter Agreement; and (h) if required by the TSX Venture Exchange, a qualified Sponsor (as defined under the TSX Venture Exchange Manual) shall accept to sponsor the Transaction and shall file with the TSX Venture Exchange at its entire satisfaction a Sponsor Report (as defined under the TSX Venture Exchange Manual)each other.

Definitive Agreements. The parties Parties will begin promptly prepare definitive agreements reflecting the terms set forth in this Agreement and cooperate in good faith with each other to prepare drafts promptly conclude the Transaction. The definitive agreements will include representations and warranties (including, without limitation, in the case of Old United, an unqualified "no conflicts" representation with respect to its certificate of incorporation, bylaws, Delaware law and the outstanding debt securities of Old United and its subsidiaries), covenants, customary conditions to closing (including, without limitation, those set forth in paragraph 2 above, the receipt by Liberty Media of favorable opinions from Old United's outside counsel with expertise in the area, in form and substance reasonably acceptable to Liberty Media, as to the accuracy of the legal documents necessary unqualified "no conflicts" representation referred to effect above, the Transaction receipt by the Parties of the favorable tax opinions referred to in Exhibit A and Liberty Media's reasonable satisfaction with the Financing. The parties shall use their good faith efforts to complete resolution of the issues raised by the Fee Letter dated April 29, 1999, among Old United and be in a position to execute definitive agreements relating Xxxxxxxxx Xxxxxx & Xxxxxxxx Securities Corporation et al., regarding Old United's 10.875% Senior Discount Notes due 2009), termination provisions, indemnification provisions (including, without limitation, provisions for the indemnification of Liberty Media and LMI against liabilities on account of guarantees or other contractual obligations related to the Transaction assets to be transferred to New United (including, without limitation, those described in Exhibit A and the Financing (the “Definitive Agreements”Exhibit A-4)) no later than 14 days following the retention and other terms and conditions that are customary in transactions of the Agent (the “Retention Date”) this nature. Any representation or such later time and date as may be mutually agreed to by the parties in writing. Upon execution of the LOI by both parties, and warranty that is made subject to prior approval of a customary material adverse effect qualifier will be made without any further exceptions that are not acceptable to the TSX Venture Exchange, BLL shall advance to BLL’s legal counsel, the sum of CAD$250,000 to be held receiving party in trust as a refundable deposit in favour of Fox UKits sole discretion. If the Transaction does foregoing conditions have not close as a result of BLL’s termination of the Transaction, then $225,000 shall be returned to BLL and Fox UK shall be entitled to receive a $25,000 termination fee from BLL. Closing of the Financing would be targeted to occur 30 days following the Retention Date of the Agent or, before been satisfied by November 30, 2008. Closing 2001, then at any time thereafter and prior to the satisfaction in full of the Transaction would be targeted to occur 60 days following the Retention Date or such other time and dateconditions, earlier or later, as this Agreement may be mutually agreed to terminated by the parties, the whole subject to regulatory approval. The Definitive Agreements shall be mutually acceptable to Fox UK, Fox US and BLL and shall be substantially any Party that is not then in the form customarily used for such a document, including customary representations and warranties and conditions. Without limitation, the Definitive Agreements shall provide that the breach of its obligations to complete the Transaction shall be conditional on, among other things: (a) Fox UK having prepared and provided audited financial statements and reports compliant with National Instrument 51-101 respecting Standards of Disclosure for Oil and Gas Activities; (b) receipt by the parties of all required third party approvals; (c) the parties having used their good faith efforts to prepare all necessary disclosure and filing documentation in respect of the Transaction and receipt by the parties of all regulatory approvals (including relevant stock exchanges); (d) required approval by the stakeholders of BLL, Fox UK and Fox US; (e) approval by the board of directors of BLL, Fox UK and Fox US; (f) as for the Transaction, completion by Fox UK and Fox US of a satisfactory due diligence on BLL pursuant to paragraph 8 of this Letter Agreement; (g) as for the Transaction, completion by BLL of a satisfactory due diligence on Fox UK and Fox US pursuant to paragraph 8 of this Letter Agreement; and (h) if required by the TSX Venture Exchange, a qualified Sponsor (as defined under the TSX Venture Exchange Manual) shall accept to sponsor the Transaction and shall file with the TSX Venture Exchange at its entire satisfaction a Sponsor Report (as defined under the TSX Venture Exchange Manual)hereunder.