Mutual Covenants Regarding the Arrangement. From the date hereof until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall: (a) use its reasonable commercial efforts to complete the Arrangement on May 25, 2018 or as soon thereafter as reasonable practicable and, in any event, by no later than the Outside Date; (b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using its reasonable commercial efforts to: (i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts; (ii) obtain all necessary consents, assignments, waivers and amendments to or terminations of any instruments and take such measures as may be appropriate to fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement; and (iii) upon reasonable consultation with the other party, oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement; (c) use its reasonable commercial efforts to obtain all necessary waivers, consents and approvals required to be obtained by it in connection with the Arrangement from Governmental Authorities and effect all necessary registrations and filings and the submission of all information requested by Governmental Authorities required to be effected by it in connection with the Arrangement including, without limitation, the Competition Act Approval and the Vermilion Share Issuance Approval; (d) cooperate with each other in taking, or causing to be taken, all actions necessary to delist the Spartan Shares from the TSX; provided, however, that such delisting will not be effective until after the Effective Time; (e) in connection with the Competition Act Approval: (i) Vermilion and Spartan shall as promptly as reasonably practicable duly file with the Competition Bureau, a request for an ARC under Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Vermilion shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Vermilion and Spartan shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Competition Bureau for additional information or documentation and to all inquiries and requests received from the Competition Bureau; and (ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with Section 3.3(b)(i) above, including providing each other with advance copies and reasonable opportunities to comment on all filings made with the Competition Bureau and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act (except for information which Vermilion or Spartan, in each case acting reasonably, consider highly confidential and sensitive which may be provided on a confidential and privileged basis to outside counsel of the other Party), and all notices and correspondence received from the Competition Bureau with respect to any filings under the Competition Act; (f) use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other of their obligations under this Section 3.3 including, without limitation, to maintain ongoing communications as between representatives of the Parties, subject in all cases to the Confidentiality Agreements; and (g) use its reasonable commercial efforts to, at least three (3) Business Days prior to the date of the Spartan Meeting, obtain and deliver to Vermilion executed Warrant Exercise Agreements from each holder of Spartan Warrants.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the date hereof until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on or before May 2531, 2018 or as soon thereafter as reasonable practicable 2012 and, in any event, by no later than the Outside DateJune 15, 2012;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, assignments, waivers and amendments to or terminations of any instruments and take such measures as may be appropriate to fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement; and
(iii) upon reasonable consultation with the other party, oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement;
(c) use its reasonable commercial efforts to obtain all necessary waivers, consents and approvals required to be obtained by it in connection with the Arrangement from Governmental Authorities and effect all necessary registrations and filings and the submission of all information requested by Governmental Authorities required to be effected by it in connection with the Arrangement including, without limitation, the Competition Act Approval and the Vermilion Share Issuance Approval;
(d) cooperate with each other in taking, or causing to be taken, all actions necessary to delist the Spartan Shares from the TSX; provided, however, that such delisting will not be effective until after the Effective Time;
(ec) in connection with the Competition Act Approval:
(i) Vermilion Pengrowth and Spartan NAL shall as promptly as reasonably practicable duly file with the Competition Bureau, a request for an ARC under Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Vermilion Pengrowth shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Vermilion Pengrowth and Spartan NAL shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Competition Bureau for additional information or documentation and to all inquiries and requests received from the Competition Bureau; and;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with Section 3.3(b)(i3.3(c)(i) above, including providing each other with advance copies and reasonable opportunities to comment on all filings made with the Competition Bureau and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act (except for information which Vermilion Pengrowth or SpartanNAL, in each case acting reasonably, consider highly confidential and sensitive which may be provided on a confidential and privileged basis to outside counsel of the other Party), and all notices and correspondence received from the Competition Bureau with respect to any filings under the Competition Act; and
(iii) notwithstanding any other provision herein, in no event will Pengrowth be required hereunder or otherwise to agree to any material hold separate, divestiture or other order, decree or restriction on the businesses of Pengrowth or any other business, the conduct thereof or future transactions;
(fd) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Section 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement; and
(e) use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other of their obligations under this Section 3.3 including, without limitation, to maintain ongoing communications as between representatives of the Parties, subject in all cases to the Confidentiality Agreements; and
(g) use its reasonable commercial efforts to, at least three (3) Business Days prior to the date of the Spartan Meeting, obtain and deliver to Vermilion executed Warrant Exercise Agreements from each holder of Spartan WarrantsAgreement.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the date hereof until the earlier Effective Date, each of the completion of the Arrangement Acquiring Parties and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on May 25, 2018 or as soon thereafter as reasonable practicable and, in any event, by no later than the Outside Date;
(b) PrimeWest and OpCo will use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using its reasonable commercial efforts toefforts:
(ia) to obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(iib) to obtain all necessary consents, assignments, waivers and amendments to or terminations of any instruments and take such measures as may be appropriate to fulfill its obligations hereunder and to carry out the transactions contemplated by hereby;
(c) to obtain the Competition Act Approval and the Investment Canada Act Approval (i) as promptly as reasonably practicable and in any event within 15 Business Days after the date of this Agreement, to make the filings required of Purchaser, PrimeWest and the PrimeWest Subsidiaries to obtain the Competition Act Approval and the Investment Canada Approval, and (ii) to commit to undertakings under the Investment Canada Act and/or registration of a consent agreement under the Competition Act, on terms and conditions (including such undertakings and consent agreement, if any) which would not, individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect or otherwise provide for any material restriction, limitation or other obligation (including any obligation to hold separate or divest any material amount of assets) relating to the governance, management, operations or business of any of the Parties or their Subsidiaries, taken as a whole; andand in furtherance thereof to:
(iiii) upon reasonable consultation comply at the earliest practicable date with any request for additional information or documentary material received by Purchaser, PrimeWest and the PrimeWest Subsidiaries from the Canadian Competition Bureau pursuant to the Competition Act, the Investment Review Division of Industry Canada pursuant to the Investment Canada Act or any other Government Entity, as the case may be;
(ii) promptly inform the other party, oppose, lift Party of any material applicable communication received by that Party from the Canadian Competition Bureau or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of Governmental Entity regarding the Arrangement;
(ciii) not agree to participate in any substantive meeting or discussion with the Canadian Competition Bureau or any representative thereof in respect of any filings, investigation or inquiry concerning the Arrangement, whether oral or in person, unless it consults with the other Party in advance and, to the extent permitted by the Canadian Competition Bureau or any representative thereof, gives the other Party the opportunity to attend and participate thereat; and if that participation is either declined or not permitted, to furnish promptly thereafter a memorandum setting forth the material terms of that meeting or those discussions; and
(iv) furnish the other Party in advance with copies of all proposed correspondence, filings and communications between them and the Canadian Competition Bureau or any representative thereof with respect to the Arrangement and provide the other Party a reasonable opportunity to comment thereon;
(d) to make required submissions under the HSR Act as promptly as reasonably practicable, and in any event within 15 Business Days, after the date of this Agreement and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use its commercially reasonable commercial best efforts to obtain all necessary waivers, consents and approvals required take or cause to be obtained by it in connection with taken all actions necessary, proper or advisable to cause the Arrangement from Governmental Authorities expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, provided however that Purchaser shall have no obligation to accept the imposition of any material restriction, limitation or other obligation (including any obligation to hold separate or divest assets) relating to the governance, management, operation or business of any of the Parties or their Subsidiaries, on a consolidated basis, as a condition of causing the expiration or termination of such waiting periods under the HSR Act; and
(e) without limiting Sections 3.3(c) and (d), to effect all necessary registrations and registrations, filings and the submission submissions of all information information: (i) requested by Governmental Authorities Entities or required to be effected by it in connection with the Arrangement includingArrangement; and (ii) otherwise to the extent deemed necessary or appropriate by Purchaser under Section 721 of the United States Defense Production Act of 1950, without limitationas amended, the Competition Act Approval and the Vermilion Share Issuance Approval;
rules and regulations thereunder (d) cooperate with each other in taking, or causing to be taken, all actions necessary to delist the Spartan Shares from the TSX; provided, however, that such delisting will not be effective until after the Effective Time;
(e) in connection with the Competition Act Approval:
purpose of receiving a favourable determination); and in each such case with respect to (i) Vermilion and Spartan shall as promptly as reasonably practicable duly file with the Competition Bureau, a request for an ARC under Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Vermilion shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Vermilion and Spartan shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Competition Bureau for additional information or documentation and to all inquiries and requests received from the Competition Bureau; and
(ii) ), to the Parties shall coordinate extent practicable and cooperate in exchanging information lawful, afford the other party prior review of and supplying assistance that is reasonably requested in connection with Section 3.3(b)(i) above, including providing each other with advance copies and a reasonable opportunities opportunity to comment on all filings made written communications, furnish information reasonably requested by the other party, advise regarding communications and consultations regarding, and invite the other party to, meetings with the Competition Bureau and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act (except for information which Vermilion or SpartanGovernmental Entities, in each case acting reasonably, consider highly confidential subject to reasonable privilege or confidentiality concerns and sensitive which may be provided on a confidential and privileged basis to outside counsel of the other Party)contractual limitations, and all notices each of Purchaser and correspondence received from the Competition Bureau with respect to any filings under the Competition Act;
(f) PrimeWest and OpCo will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other of their obligations under this Section 3.3 including, without limitation, continuing to provide reasonable access to information and to maintain ongoing communications as between representatives officers of the PartiesPurchaser and OpCo, subject in all cases to the Confidentiality Agreements; and
(g) use its reasonable commercial efforts to, at least three (3) Business Days prior to the date of the Spartan Meeting, obtain and deliver to Vermilion executed Warrant Exercise Agreements from each holder of Spartan Warrants.Agreement
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the date hereof until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on May 25November 8, 2018 or as soon thereafter as reasonable reasonably practicable and, in any event, by no later than the Outside Date;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action actions and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, assignments, waivers and amendments to or terminations of any instruments and take such measures as may be appropriate to fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement; and
(iii) upon reasonable consultation with the other partyParty, oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement;
(c) use its reasonable commercial efforts to obtain all necessary waivers, consents and approvals required to be obtained by it in connection with the Arrangement from Governmental Authorities and effect all necessary registrations and filings and the submission of all information requested by Governmental Authorities required to be effected by it in connection with the Arrangement including, without limitation, the Competition Act Approval, the CTA Act Approval, the Investment Canada Act Approval and the Vermilion Enbridge Share Issuance Approval;
(d) cooperate with each other in taking, or causing to be taken, all actions necessary to delist the Spartan ENF Shares from the TSXTSX in accordance with the policies and procedures of the TSX following completion of the steps set out in the Plan of Arrangement; provided, however, that such delisting will not be effective until after the Effective Time;
(e) in connection with the Competition Act Approval and the CTA Act Approval:
(i) Vermilion Enbridge and Spartan ENF shall as promptly as reasonably practicable (A) duly file with the Competition Bureau, a request for an ARC under Section section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request and (B) give notice to the Minister of Transport pursuant to subsection 53.1(1) of the Canada Transportation Act and supply the Minister with such additional information as the Minister may request. Vermilion At Enbridge’s discretion, the Parties shall also file notifications under section 114 of the Competition Act with the Competition Bureau. Enbridge shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section section 102 of the Competition Act. Vermilion Enbridge and Spartan ENF shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Competition Bureau or Transport Canada for additional information or documentation and to all inquiries and requests received from the Competition BureauBureau or Transport Canada; and
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with Section 3.3(b)(iSubsection 3.3(e)(i) above, including providing each other with advance copies and reasonable opportunities to comment on all filings made with the Competition Bureau and Transport Canada and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act and the CTA Act (except for information which Vermilion Enbridge or SpartanENF, in each case acting reasonably, consider highly confidential and sensitive which may be provided on a confidential and privileged basis to outside counsel of the other Party), and all notices and correspondence received from the Competition Bureau and Transport Canada with respect to any filings under the Competition Act and the CTA Act;
(f) in connection with the Investment Canada Act Approval:
(i) Enbridge shall as promptly as reasonably practicable duly file with the Investment Review Division, an application for review under section 17 of the Investment Canada Act. Enbridge and ENF shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Investment Review Division for additional information or documentation and to all inquiries and requests received from the Investment Review Division; and
(ii) ENF shall coordinate and cooperate in supplying information and assistance that is reasonably requested by Enbridge in connection with Subsection 3.3(f)(i) above; and
(g) use its reasonable commercial efforts to cooperate with the other Party in connection with the performance by the other Party of their obligations under this Section 3.3 including, without limitation, to provide the other Party with a reasonable opportunity to review and comment on all filings and material correspondence with and to Governmental Authorities and to promptly provide final copies thereof to the other Party once filed or given, to promptly provide the other Party with all approvals and material notices and correspondence received from Governmental Authorities, and to maintain ongoing communications as between representatives of the PartiesParties in respect of the Regulatory Approvals, subject in all cases to the Confidentiality Agreements; and
(g) use its reasonable commercial efforts to, at least three (3) Business Days prior to the date of the Spartan Meeting, obtain and deliver to Vermilion executed Warrant Exercise Agreements from each holder of Spartan WarrantsAgreement.
Appears in 1 contract
Samples: Arrangement Agreement (Enbridge Inc)
Mutual Covenants Regarding the Arrangement. From the date hereof until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8Effective Date, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on May 25of Enerplus, 2018 or as soon thereafter as reasonable practicable andEnerMark, in any event, by no later than the Outside Date;
(b) Focus and FET Resources will use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using its reasonable commercial efforts toefforts:
(ia) to obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(iib) to obtain all necessary consents, assignments, waivers and amendments to or terminations of any instruments and take such measures as may be appropriate to fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement; and
(iii) upon reasonable consultation with the other party, oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangementhereby;
(c) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Arrangement, and to obtain all necessary waivers, consents and approvals required to be obtained by it in connection with the Arrangement from Governmental Authorities and effect all necessary registrations and filings and the submission of all information requested by Governmental Authorities required to be effected by it in connection with the Arrangement Arrangement, including, without limitation, the Competition Act Approval and the Vermilion Share Issuance Approval;
(d) cooperate with each other in taking, or causing to be taken, all actions necessary to delist the Spartan Shares from the TSX; provided, however, that such delisting will not be effective until after the Effective Time;
(e) in connection with the Competition Act Approval:
(i) Vermilion and Spartan shall as promptly as reasonably practicable duly file with the Competition Bureau, a request for an ARC including under Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Vermilion shall have the primary responsibility for the preparation Investment Canada Act, and submission of a request for an ARC pursuant to Section 102 each of the Competition Act. Vermilion and Spartan shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Competition Bureau for additional information or documentation and to all inquiries and requests received from the Competition Bureau; and
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with Section 3.3(b)(i) above, including providing each other with advance copies and reasonable opportunities to comment on all filings made with the Competition Bureau and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act (except for information which Vermilion or Spartan, in each case acting reasonably, consider highly confidential and sensitive which may be provided on a confidential and privileged basis to outside counsel of the other Party), and all notices and correspondence received from the Competition Bureau with respect to any filings under the Competition Act;
(f) will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other of their obligations under this Section 3.3 including, without limitation, assisting with the preparation and filing of any applications;
(d) to cooperate such that EnerMark (or its successor under the Arrangement) shall enter into written agreements effective as of the Effective Date satisfactory to each of Enerplus and Focus, acting reasonably, pursuant to which EnerMark shall agree that, for a period of six years after the Effective Date, EnerMark shall cause to be maintained in effect the current policies of directors' and officers' liability insurance maintained by each of Enerplus and Focus (provided that EnerMark may substitute therefor policies of at least the same claims coverage and amounts containing terms and conditions that are no less advantageous) providing coverage on a "trailing" or "run-off" basis for all present and former directors and officers of EnerMark and FET Resources with respect to claims arising from facts or events which occurred before the Effective Date, or such that Focus shall have arranged for such insurance utilizing its current insurance broker on terms satisfactory to Enerplus and EnerMark, acting reasonably;
(e) to ensure that the aggregate value of Enerplus' TCP following completion of the Agreement is not greater than 7% of the aggregate fair market value of the issued and outstanding Enerplus Units at such time; and
(f) to cooperate with the Other Party and its tax advisors in structuring the Arrangement in a tax effective manner, and assist the Other Party and its tax advisors in making such investigations and inquiries with respect to such Party in that regard, as the Other Party and its tax advisors shall consider necessary, acting reasonably, provided that: (i) Focus and FET Resources shall not be obligated to consent or agree to any structuring that has the effect of reducing the consideration to to be received under the Arrangement by the Focus Securityholders; and (ii) Enerplus and EnerMark shall not be obligated to consent or agree to any structuring that: (A) could have an adverse effect on its "mutual fund trust" status under the ITA or its level of ownership of property that is TCP; (B) has the effect of increasing the consideration to be paid by Enerplus under the Arrangement; or (C) that would reduce, for the purposes of the ITA, the aggregate cost amount of assets held directly by Focus to less than $1.1 billion, and each of Enerplus and Focus will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other of their obligations under this Section 3.3 including, without limitation, continuing to provide reasonable access to information and to maintain ongoing communications as between representatives officers of the PartiesEnerMark and FET Resources, subject in all cases to the Confidentiality Agreements; and
(g) use its reasonable commercial efforts to, at least three (3) Business Days prior to the date of the Spartan Meeting, obtain and deliver to Vermilion executed Warrant Exercise Agreements from each holder of Spartan WarrantsAgreement.
Appears in 1 contract
