THE BUYER’S WARRANTIES AND UNDERTAKINGS. 14.1 The Buyer warrants to the Sellers that each Buyer Warranty set out in Schedule 6 is true, accurate and not misleading as at the date of this Agreement. 14.2 The Buyer undertakes from the date of this Agreement to the Completion Date (both dates inclusive): 14.2.1 to comply with the requirements of the TSX and NASDAQ which are relevant to this Agreement and to apply for and use commercially reasonable efforts to obtain conditional listing approval of the TSX and NASDAQ for the Deferred Consideration Securities, subject only to the satisfaction of customary conditions required by such exchange or market; 14.2.2 to promptly notify the Institutional Sellers’ Representative of: (a) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated thereby, (b) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (c) any material filing, actions, suits, claims, investigations or proceedings commenced or threatened, in each case to its knowledge, against, relating to, involving or otherwise affecting this Agreement or the transactions contemplated hereby; and 14.2.3 to use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on the terms and conditions described herein and in the Commitment Letter prior to the Longstop Date, including (i) maintaining in effect the Commitment Letter, (ii) negotiating definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms that are acceptable to Buyer and not materially less favorable, taken as a whole to Buyer than the terms set forth in the Commitment Letter and would not adversely affect (including with respect to timing) the ability of Buyer to consummate the Transaction and (iii) satisfying on a timely basis all conditions applicable to Buyer and its subsidiaries in the Commitment Letter and the Definitive Agreements. 14.2.4 to not declare or issue dividends other than the quarterly ordinary dividend of $0.075 per common share in accordance with past practice; 14.2.5 except with the prior written consent of the Institutional Sellers’ Representative, that it shall not and procure that each Buyer’s Group Undertaking shall not, unless (1) required by this Agreement or (2) is reasonably necessary in order to comply with: (i) any transaction, commitment or arrangement existing as at or before the date of this Agreement; or (ii) any law, regulation, rule, official directive, request or guideline of any Authority from time to time or (3) is in connection with any equity financing in connection with the Transaction or (4) is in connection with the grant, vesting or exercise of management or employee incentive plans or equivalent of the Company: (a) create, allot, issue, grant, acquire, repay or redeem any share capital of the Buyer, or any options, warrants or similar rights exercisable or exchangeable for or convertible into the share capital of the Buyer or agree to do any of those things; or (b) enter into, carry out or effect any transaction, agreement or arrangement that would, or may, require a Buyer Group Undertaking to obtain, or cause the withdrawal of any existing, corporate, regulatory or other approvals necessary for the Buyer to execute, and perform its obligations under, this Agreement and each of the Buyer’s Completion Documents; and 14.2.6 to the extent permitted by Law or regulation, to promptly notify the Institutional Sellers’ Representative of: (a) any change, effect, event, development, occurrence, circumstance or state of facts which has or would reasonably be expected to have a material and adverse effect in respect of the Buyer, (b) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated thereby, (c) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (d) any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Buyer, this Agreement or the transactions contemplated hereby. 14.3 The Buyer warrants to the Sellers at the date of this Agreement that: 14.3.1 the Sellers have been provided with correct and complete copies of the executed (i) commitment letter, dated as of 4 September 2015, in favor of Buyer from the Financing Sources; and (ii) fee letter related thereto subject to redaction of fee amounts, pricing caps (including pricing caps in any “securities demand” provisions), economic “flex” terms and other economic provisions that are customarily redacted in connection with acquisition agreements of this type ((i) and (ii), together with all exhibits, annexes, schedules and attachments thereto, the “Commitment Letter”)), pursuant to which the Financing Sources have committed, subject to the terms and conditions of the Commitment Letter, to lend to Buyer, the amounts set forth therein (the “Financing”) for the purpose of funding the transactions contemplated by the Transaction Documents; 14.3.2 the Commitment Letter is in full force and effect and has been executed by and is binding upon all the parties thereto; 14.3.3 except as expressly set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Financing Sources to provide the Financing or any contingencies that would permit the Financing Sources to reduce the total amount of the Financing; 14.3.4 the Financing, when funded in accordance with the Commitment Letter, together with any cash and marketable securities on Buyer’s balance sheets, shall provide Buyer with the necessary cash resources to meet its cash payment obligations under the Transaction Documents; and 14.3.5 the Buyer will have sufficient cash resources available to it, on an unconditional basis, to satisfy its cash payment obligations to pay any damages to which the Sellers may become entitled for breach of the Transaction Documents. 14.4 The Buyer undertakes to maintain the Commitment Letter in full force and effect and shall ensure that there shall be no amendment, modification, termination, replacement, restatement, cancellation or other change made to the Commitment Letter that would adversely affect the ability of the Buyer to satisfy its cash payment obligations under the Transaction Documents and shall not knowingly do any act or take any step or omit to do any act or take any step that would in any way: 14.4.1 reduce the aggregate amount of the Financing available to be drawn by the Buyer thereunder; 14.4.2 reduce the period of time for which funds are available to be drawn by the Buyer; or 14.4.3 otherwise materially adversely affect the ability of the Buyer to draw funds thereunder on the Completion Date in an amount sufficient to enable the Buyer to meet its cash payment obligations under the Transaction Documents and all fees and expenses required to be paid in connection with the Financing. 14.5 The Buyer further undertakes to each of the Sellers that it shall take all action necessary to draw such amounts as it requires under the Financing on the Completion Date sufficient for the Buyer to meet its cash payment obligations under the Transaction Documents and all fees (including any VAT properly chargeable thereon) and expenses required to be paid in connection with the Financing. 14.6 To the extent that such funds as referred to in clause 14.5 are not capable of being drawn as a result of a failure of the relevant counterparty to perform its cash payment obligations under the Commitment Letter, the Buyer undertakes to take all reasonable actions (or procure that such action is taken) as is necessary to enforce its or any other member of the Buyer’s Group Undertaking’s rights against such counterparty under the relevant agreements.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Amdipharm Mercury Limited (Concordia Healthcare Corp.)
THE BUYER’S WARRANTIES AND UNDERTAKINGS. 14.1 11.1 The Buyer warrants to the Sellers that Seller that:
11.1.1 it is a corporation duly organized and validly existing under the laws of the State of Oregon and it has all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its business as now conducted and as proposed to be conducted;
11.1.2 each Buyer’s Group Company to or by whom any of the HK Shares, Singapore Shares or Business Assets are being transferred or acquired (each an “Acquiring Buyer Warranty set out in Schedule 6 is trueCompany”) will, accurate upon its incorporation or establishment, be a corporation duly organized and not misleading validly existing under the laws of its respective place of incorporation or establishment and has all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its business as at now conducted and as proposed to be conducted;
11.1.3 it has the date right, power and authority, and has taken all corporate action on the part of this Agreement.
14.2 The the Buyer undertakes from and its respective officers, directors and shareholders necessary for the date authorisation, execution, delivery and performance of this Agreement and the Other Documents to which it is a party and the Completion Date (both dates inclusive):
14.2.1 to comply with the requirements performance of the TSX and NASDAQ which are relevant to its obligations under this Agreement and the Other Documents to apply for which it is a party has been taken or will be taken as of or prior to Completion. This Agreement has been, and use commercially reasonable efforts to obtain conditional listing approval each of the TSX Other Documents to which the Buyer is a party, will have been at Completion, duly executed and NASDAQ for delivered by the Deferred Consideration SecuritiesBuyer and, subject only as the case may be, and this Agreement is, and each of the Other Documents to which the satisfaction Buyer is a party will be, (assuming due authorization, execution and delivery by the Seller) at Completion, a legal, valid and binding obligation of customary conditions required by such exchange or marketand enforceable against the Buyer in accordance with its terms;
14.2.2 11.1.4 its obligations under this Agreement and the Other Documents to promptly notify which it is expressed to be a party (the Institutional Sellers’ Representative of: “Buyer’s Completion Documents”) are, or when the relevant Buyer’s Completion Document is executed will be, enforceable in accordance with their respective terms and this Agreement and the Buyer’s Completion Documents when executed will constitute valid and binding obligations of the Buyer;
11.1.5 the execution, delivery and performance of this Agreement and the Buyer’s Completion Documents by it will not (a) any constitute a violation (with or without the giving of notice or other communication from any person alleging that the consent (lapse of time, or waiver, permit, exemption, order, approval, agreement amendment or confirmationboth) of such person is required in connection with this Agreement any law applicable to it or the transactions contemplated therebyany Acquiring Buyer Company, (b) require any notice consent, approval or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy authorization of any such written notice or communication to the Sellers)person, or (c) any material filing, actions, suits, claims, investigations conflict with or proceedings commenced or threatened, result in each case to its knowledge, against, relating to, involving or otherwise affecting this Agreement or the transactions contemplated hereby; and
14.2.3 to use its reasonable best efforts to takea breach of, or cause to be takenconstitute a default under, all actions, and do, any provision of its or cause to be done, all things necessary, proper or advisable to obtain the proceeds any Acquiring Buyer Company’s articles of the Financing on the terms and conditions described herein and in the Commitment Letter prior to the Longstop Date, including (i) maintaining in effect the Commitment Letter, (ii) negotiating definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms that are acceptable to Buyer and not materially less favorable, taken as a whole to Buyer than the terms set forth in the Commitment Letter and would not adversely affect (including with respect to timing) the ability of Buyer to consummate the Transaction and (iii) satisfying on a timely basis all conditions applicable to Buyer and its subsidiaries in the Commitment Letter and the Definitive Agreements.
14.2.4 to not declare or issue dividends other than the quarterly ordinary dividend of $0.075 per common share in accordance with past practiceincorporation;
14.2.5 11.1.6 except with the prior written consent of the Institutional Sellers’ Representativefor CIBC World Markets Corp., that it shall not and procure that each Buyerno broker, finder or investment banker is entitled to any brokerage, finder’s Group Undertaking shall not, unless (1) required by this Agreement or (2) is reasonably necessary in order to comply with: (i) any transaction, commitment other fee or arrangement existing as at or before the date of this Agreement; or (ii) any law, regulation, rule, official directive, request or guideline of any Authority from time to time or (3) is in connection with any equity financing commission in connection with the Transaction transactions contemplated by this Agreement based upon arrangements made by or (4) is in connection with the grant, vesting or exercise of management or employee incentive plans or equivalent of the Company:
(a) create, allot, issue, grant, acquire, repay or redeem any share capital on behalf of the Buyer, or any options, warrants or similar rights exercisable or exchangeable for or convertible into the share capital of the Buyer or agree to do any of those things; or
(b) enter into, carry out or effect any transaction, agreement or arrangement that would, or may, require a Buyer Group Undertaking to obtain, or cause the withdrawal of any existing, corporate, regulatory or other approvals necessary for the Buyer to execute, and perform its obligations under, this Agreement and each of the Buyer’s Completion Documents; and
14.2.6 to the extent permitted by Law 11.1.7 there is no claim, action, suit, arbitration, criminal or regulation, to promptly notify the Institutional Sellers’ Representative of: (a) any change, effect, event, development, occurrence, circumstance civil investigation or state of facts which has proceeding pending or would reasonably be expected to have a material and adverse effect in respect of the Buyer, (b) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated thereby, (c) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (d) any material filing, actions, suits, claims, investigations or proceedings commenced involving or, to its knowledge, threatened against it with respect to this Agreement or the Buyer’s Completion Documents, or in connection with the transactions contemplated hereby or thereby, and there is no valid basis for any such claim, action, suit, proceeding or investigation.
11.2 The Buyer undertakes to the Seller that except in the case of wilful misconduct, fraud or fraudulent misrepresentation, the Buyer and each Buyer’s Group Company:
11.2.1 has no rights against; and
11.2.2 may not make any claim against, relating any employee, director, agent, officer, shareholder or adviser of the Seller and any Seller Group Company (including for these purposes each member of the EPCI HK Group and the EPCI Singapore Group) on whom it may have relied before agreeing to any term of, or involving or otherwise affecting the Buyerentering into, this Agreement or the transactions contemplated herebyany other agreement or document referred to herein.
14.3 The Buyer warrants to the Sellers at the date of this Agreement that:
14.3.1 the Sellers have been provided with correct and complete copies of the executed (i) commitment letter, dated as of 4 September 2015, in favor of Buyer from the Financing Sources; and (ii) fee letter related thereto subject to redaction of fee amounts, pricing caps (including pricing caps in any “securities demand” provisions), economic “flex” terms and other economic provisions that are customarily redacted in connection with acquisition agreements of this type ((i) and (ii), together with all exhibits, annexes, schedules and attachments thereto, the “Commitment Letter”)), pursuant to which the Financing Sources have committed, subject to the terms and conditions of the Commitment Letter, to lend to Buyer, the amounts set forth therein (the “Financing”) for the purpose of funding the transactions contemplated by the Transaction Documents;
14.3.2 the Commitment Letter is in full force and effect and has been executed by and is binding upon all the parties thereto;
14.3.3 except as expressly set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Financing Sources to provide the Financing or any contingencies that would permit the Financing Sources to reduce the total amount of the Financing;
14.3.4 the Financing, when funded in accordance with the Commitment Letter, together with any cash and marketable securities on Buyer’s balance sheets, shall provide Buyer with the necessary cash resources to meet its cash payment obligations under the Transaction Documents; and
14.3.5 the Buyer will have sufficient cash resources available to it, on an unconditional basis, to satisfy its cash payment obligations to pay any damages to which the Sellers may become entitled for breach of the Transaction Documents.
14.4 11.3 The Buyer undertakes to maintain the Commitment Letter in full force Seller to indemnify and effect hold harmless the Seller against any and all Costs (which shall ensure that there shall be no amendment, modification, termination, replacement, restatement, cancellation include premiums and legal fees) incurred or other change made to the Commitment Letter that would adversely affect the ability of the Buyer to satisfy its cash payment obligations under the Transaction Documents and shall not knowingly do any act or take any step or omit to do any act or take any step that would in any way:
14.4.1 reduce the aggregate amount of the Financing available to be drawn suffered by the Buyer thereunder;
14.4.2 reduce the period Seller as a result of time for which funds are available to be drawn by the Buyer; or
14.4.3 otherwise materially adversely affect the ability of the Buyer to draw funds thereunder on the Completion Date in an amount sufficient to enable the Buyer to meet its cash payment obligations under the Transaction Documents and all fees and expenses required to be paid or in connection with the Financing.
14.5 The Buyer further undertakes to each assignment of the Hong Kong Lease and the assignment of any leasehold interests of the Business Sellers that it shall take all action necessary to draw such amounts as it requires under the Financing on the Completion Date sufficient for the Buyer to meet its cash payment obligations under the Transaction Documents and all fees (including any VAT properly chargeable thereon) and expenses required to be paid in connection with the Financing.
14.6 To transactions contemplated pursuant to this Agreement and the extent that such funds as referred to in clause 14.5 are not capable of being drawn as a result of a failure of the relevant counterparty to perform its cash payment obligations under the Commitment Letter, the Buyer undertakes to take all reasonable actions (or procure that such action is taken) as is necessary to enforce its or Other Documents and shall reimburse any other member of the BuyerSeller’s Group UndertakingCompany for any expenses or premiums paid by any Seller’s rights against such counterparty under the relevant agreementsGroup Company in relation thereto.
Appears in 1 contract
Samples: Supplemental Agreement (Merix Corp)
THE BUYER’S WARRANTIES AND UNDERTAKINGS. 14.1 8.1 The Buyer warrants to the Sellers that each Buyer Warranty set out in Schedule 6 is true, accurate and not misleading RBS as at the date of this Agreement.
14.2 The Buyer undertakes from the date of this Agreement to the Completion Date (both dates inclusive):
14.2.1 to comply with the requirements of the TSX and NASDAQ which are relevant to this Agreement and to apply for and use commercially reasonable efforts to obtain conditional listing approval of as at Completion that:
8.1.1 the TSX and NASDAQ for the Deferred Consideration Securities, subject only to the satisfaction of customary conditions required by such exchange or market;
14.2.2 to promptly notify the Institutional Sellers’ Representative of: (a) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person Buyer is required in connection with this Agreement or the transactions contemplated thereby, (b) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (c) any material filing, actions, suits, claims, investigations or proceedings commenced or threatenedvalidly incorporated, in each case existence and duly registered under the laws of its jurisdiction and has full power to conduct its knowledge, against, relating to, involving or otherwise affecting this Agreement or the transactions contemplated hereby; and
14.2.3 to use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing business as conducted on the terms and conditions described herein and in the Commitment Letter prior to the Longstop Date, including (i) maintaining in effect the Commitment Letter, (ii) negotiating definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms that are acceptable to Buyer and not materially less favorable, taken as a whole to Buyer than the terms set forth in the Commitment Letter and would not adversely affect (including with respect to timing) the ability of Buyer to consummate the Transaction and (iii) satisfying on a timely basis all conditions applicable to Buyer and its subsidiaries in the Commitment Letter and the Definitive Agreements.
14.2.4 to not declare or issue dividends other than the quarterly ordinary dividend of $0.075 per common share in accordance with past practice;
14.2.5 except with the prior written consent of the Institutional Sellers’ Representative, that it shall not and procure that each Buyer’s Group Undertaking shall not, unless (1) required by this Agreement or (2) is reasonably necessary in order to comply with: (i) any transaction, commitment or arrangement existing as at or before the date of this Agreement; or (ii) any law;
8.1.2 the Buyer has the right, regulationpower and authority, ruleand has taken all action necessary, official directiveto execute, request or guideline of any Authority from time deliver and exercise its rights and perform its obligations under this Agreement and each Transactional Document to time or (3) which it is in connection with any equity financing in connection with the Transaction or (4) is in connection with the grant, vesting or exercise of management or employee incentive plans or equivalent of the Company:a party;
(a) create, allot, issue, grant, acquire, repay or redeem any share capital of 8.1.3 the Buyer's obligations under this Agreement and/or any other Transactional Document are, or when the relevant Transactional Document is executed will, constitute binding obligations in accordance with their respective terms;
8.1.4 the Buyer is not insolvent or bankrupt under the laws of its jurisdiction of incorporation, unable to pay its debts as they fall due nor has proposed or is liable to any optionsarrangement (whether by court process or otherwise) under which its creditors (or any group of them) would receive less than the amounts due to them. There are no proceedings in relation to any compromise or arrangement with creditors or any winding up, warrants bankruptcy or similar rights exercisable or exchangeable for or convertible into insolvency proceedings concerning the share capital Buyer and no events have occurred which would justify such proceedings. No steps have been taken to enforce any security over any assets of the Buyer or agree and no event has occurred to do any of those things; orgive the right to enforce such security;
(b) enter into, carry out or effect any transaction, agreement or arrangement that would, or may, require a Buyer Group Undertaking to obtain, or cause the withdrawal of any existing, corporate, regulatory or other approvals necessary for 8.1.5 the Buyer has available cash resources to executepay the Initial Consideration and to meet its obligations under this Agreement;
8.1.6 the execution and delivery of, and perform the performance by the Buyer of its obligations under, this Agreement and each and/or any Transactional Document will not:
(a) result in a breach of any provision of the memorandum or articles of association or by-laws or equivalent constitutional documents of the Buyer’s Completion Documents; and;
14.2.6 to the extent permitted by Law or regulation, to promptly notify the Institutional Sellers’ Representative of: (a) any change, effect, event, development, occurrence, circumstance or state of facts which has or would reasonably be expected to have a material and adverse effect in respect of the Buyer, (b) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required result in connection with this Agreement or the transactions contemplated thereby, (c) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers)breach of, or (d) constitute a default under, any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Buyer, this Agreement or the transactions contemplated hereby.
14.3 The Buyer warrants to the Sellers at the date of this Agreement that:
14.3.1 the Sellers have been provided with correct and complete copies of the executed (i) commitment letter, dated as of 4 September 2015, in favor of Buyer from the Financing Sources; and (ii) fee letter related thereto subject to redaction of fee amounts, pricing caps (including pricing caps in any “securities demand” provisions), economic “flex” terms and other economic provisions that are customarily redacted in connection with acquisition agreements of this type ((i) and (ii), together with all exhibits, annexes, schedules and attachments thereto, the “Commitment Letter”)), pursuant instrument to which the Financing Sources have committed, subject to Buyer is a party or by which the terms Buyer is bound and conditions which is material in the context of the Commitment Letter, to lend to Buyer, the amounts set forth therein (the “Financing”) for the purpose of funding the transactions contemplated by the Transaction Documentsthis Agreement;
14.3.2 the Commitment Letter is (c) result in full force and effect and has been executed by and is binding upon all the parties thereto;
14.3.3 except as expressly set forth in the Commitment Lettera breach of any order, there are no conditions precedent to the obligations judgment or decree of the Financing Sources to provide the Financing any court or any contingencies that would permit the Financing Sources to reduce the total amount of the Financing;
14.3.4 the Financing, when funded in accordance with the Commitment Letter, together with any cash and marketable securities on Buyer’s balance sheets, shall provide Buyer with the necessary cash resources to meet its cash payment obligations under the Transaction Documents; and
14.3.5 the Buyer will have sufficient cash resources available to it, on an unconditional basis, to satisfy its cash payment obligations to pay any damages governmental authority to which the Sellers may become entitled for breach of the Transaction Documents.
14.4 The Buyer undertakes to maintain the Commitment Letter in full force and effect and shall ensure that there shall be no amendment, modification, termination, replacement, restatement, cancellation is a party or other change made to the Commitment Letter that would adversely affect the ability of by which the Buyer to satisfy its cash payment obligations under the Transaction Documents and shall not knowingly do any act is bound or take any step or omit to do any act or take any step that would in any way:
14.4.1 reduce the aggregate amount of the Financing available to be drawn by the Buyer thereundersubmits;
14.4.2 reduce the period of time for which funds are available to be drawn by the Buyer; or
14.4.3 otherwise materially adversely affect the ability of the Buyer to draw funds thereunder on the Completion Date in an amount sufficient to enable the Buyer to meet its cash payment obligations under the Transaction Documents and all fees and expenses required to be paid in connection with the Financing.
14.5 The Buyer further undertakes to each of the Sellers that it shall take all action necessary to draw such amounts as it requires under the Financing on the Completion Date sufficient for the Buyer to meet its cash payment obligations under the Transaction Documents and all fees (including any VAT properly chargeable thereond) and expenses required to be paid in connection with the Financing.
14.6 To the extent that such funds save as referred to in clause 14.5 are 3.1 require the Buyer to obtain any consent or approval of, or give any notice to or make any registration with, any governmental or other authority which has not capable been obtained or made at the date hereof both on an unconditional basis and on a basis which cannot be revoked (save pursuant to any legal or regulatory entitlement to revoke the same other than by reason of being drawn any misrepresentation or misstatement); or
(e) require the Buyer to obtain any consent or approval of any of its shareholders or any other person; and
8.1.7 so far as a result the Buyer is aware, neither the Buyer nor any Affiliate is subject to any order, judgement, direction, investigation or other proceeding by any governmental authority which will, or is reasonably likely to, prevent or delay the fulfilment of any of the Buyer's Conditions.
8.2 The Buyer undertakes to RBS, RBS acting for itself and as agent and trustee for each other RBS Group Undertaking, that, except in the case of fraud or fraudulent misrepresentation or wilful default, neither the Buyer nor any of its Affiliates:
8.2.1 has any rights against; and
8.2.2 may make any claim against, any employee, director, agent, officer or adviser of a failure RBS Group Undertaking on whom it may have relied before agreeing to any term of, or entering into, this Agreement or any other agreement or document referred to herein.
8.3 The Buyer shall procure that:
8.3.1 as soon as reasonably practicable after the Completion Date and in any event within 20 Business Days afterwards, the name of any Group Company which consists of or incorporates the word "RBS" or the words "Royal Bank of Scotland" is changed to a name which does not include that word or words or any name which, in the reasonable opinion of RBS, is substantially similar or confusing;
8.3.2 (subject to clause 8.4) as soon as reasonably practicable after the Completion Date and in any event within 20 Business Days afterwards, the Group Companies shall cease to use or display any trade or service name or maxx, business name, logo or domain name used or held by any RBS Group Undertaking or any maxx, name or logo which, in the reasonable opinion of RBS, is substantially or confusingly similar to any of them;
8.3.3 between the execution of this Agreement and Completion, the Buyer shall comply with its obligations set out in Schedule 12;
8.3.4 the Buyer's Group Undertakings shall comply with the terms of the Transitional Trademark Licence, the Transitional Services Agreement, the Reverse Transitional Services Agreement and with effect from Completion the Lombard Aircraft Transfer Agreements; and
8.3.5 following Completion each Group Company promptly pays any Tax for which it is primarily liable and which is not of a type which has arisen in breach of the Warranty in paragraph 5.1 of Schedule 4 (including, in particular, any Tax liability arising under Division 45 of the Australian Income Tax Assessment Acx 0000 xn connection with the sale of Shares contemplated in this Agreement), and the Buyer covenants to pay to RBS (for itself or as agent for the relevant RBS Group Undertaking), on demand and on an after Tax basis an amount equal to any Tax assessed on RBS or on a RBS Group Undertaking to the extent that such Tax is primarily a liability of any Buyer's Group Undertaking and is not of a type which has arisen in breach of the Warranty in paragraph 5.1 of Schedule 4 and to the extent that an amount in respect of such Tax has not already been recovered under this clause, any other provision of this Agreement or an applicable statutory provision.
8.4 The Buyer shall use all commercially reasonable efforts to procure that as soon as practicable after the Completion Date (i) the fireproof nameplates attached to each Aircraft and Engine owned or leased by a Group Company (and stating the name of the Owner and any Lessor of the relevant counterparty Aircraft or Engine) are replaced with nameplates that reflect the changes to perform its cash payment obligations under the Commitment Letternames of the Group Companies as contemplated by clause 8.3.1 (such changes, the Buyer undertakes to take all reasonable actions "Name Changes") and (ii) such aircraft registry mortgage, Cape Town or procure that such action is taken) other similar filings are made as is are necessary to enforce its reflect the Name Changes (the "Registry Updates"), and in each case the provisions of clause 8.3.2 shall not apply in respect of such fireproof nameplates and Registry Updates pending such replacement or any other member of the Buyer’s Group Undertaking’s rights against such counterparty under the relevant agreementsupdating in accordance with this clause 8.4.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase (Royal Bank of Scotland Group PLC)
THE BUYER’S WARRANTIES AND UNDERTAKINGS. 14.1 11.1 The Buyer warrants to the Sellers that Seller that:
11.1.1 it is a corporation duly organized and validly existing under the laws of the State of Oregon and it has all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its business as now conducted and as proposed to be conducted;
11.1.2 each Buyer’s Group Company to or by whom any of the HK Shares, Singapore Shares or Business Assets are being transferred or acquired (each an “Acquiring Buyer Warranty set out in Schedule 6 is trueCompany”) will, accurate upon its incorporation or establishment, be a corporation duly organized and not misleading validly existing under the laws of its respective place of incorporation or establishment and has all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its business as at now conducted and as proposed to be conducted;
11.1.3 it has the date right, power and authority, and has taken all corporate action on the part of this Agreement.
14.2 The the Buyer undertakes from and its respective officers, directors and shareholders necessary for the date authorisation, execution, delivery and performance of this Agreement and the Other Documents to which it is a party and the Completion Date (both dates inclusive):
14.2.1 to comply with the requirements performance of the TSX and NASDAQ which are relevant to its obligations under this Agreement and the Other Documents to apply for which it is a party has been taken or will be taken as of or prior to Completion. This Agreement has been, and use commercially reasonable efforts to obtain conditional listing approval each of the TSX Other Documents to which the Buyer is a party, will have been at Completion, duly executed and NASDAQ for delivered by the Deferred Consideration SecuritiesBuyer and, subject only as the case may be, and this Agreement is, and each of the Other Documents to which the satisfaction Buyer is a party will be, (assuming due authorization, execution and delivery by the Seller) at Completion, a legal, valid and binding obligation of customary conditions required by such exchange or marketand enforceable against the Buyer in accordance with its terms;
14.2.2 11.1.4 its obligations under this Agreement and the Other Documents to promptly notify which it is expressed to be a party (the Institutional Sellers’ Representative of: “Buyer’s Completion Documents”) are, or when the relevant Buyer’s Completion Document is executed will be, enforceable in accordance with their respective terms and this Agreement and the Buyer’s Completion Documents when executed will constitute valid and binding obligations of the Buyer;
11.1.5 the execution, delivery and performance of this Agreement and the Buyer’s Completion Documents by it will not (a) any constitute a violation (with or without the giving of notice or other communication from any person alleging that the consent (lapse of time, or waiver, permit, exemption, order, approval, agreement amendment or confirmationboth) of such person is required in connection with this Agreement any law applicable to it or the transactions contemplated therebyany Acquiring Buyer Company, (b) require any notice consent, approval or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy authorization of any such written notice or communication to the Sellers)person, or (c) any material filing, actions, suits, claims, investigations conflict with or proceedings commenced or threatened, result in each case to its knowledge, against, relating to, involving or otherwise affecting this Agreement or the transactions contemplated hereby; and
14.2.3 to use its reasonable best efforts to takea breach of, or cause to be takenconstitute a default under, all actions, and do, any provision of its or cause to be done, all things necessary, proper or advisable to obtain the proceeds any Acquiring Buyer Company’s articles of the Financing on the terms and conditions described herein and in the Commitment Letter prior to the Longstop Date, including (i) maintaining in effect the Commitment Letter, (ii) negotiating definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms that are acceptable to Buyer and not materially less favorable, taken as a whole to Buyer than the terms set forth in the Commitment Letter and would not adversely affect (including with respect to timing) the ability of Buyer to consummate the Transaction and (iii) satisfying on a timely basis all conditions applicable to Buyer and its subsidiaries in the Commitment Letter and the Definitive Agreements.
14.2.4 to not declare or issue dividends other than the quarterly ordinary dividend of $0.075 per common share in accordance with past practiceincorporation;
14.2.5 11.1.6 except with the prior written consent of the Institutional Sellers’ Representativefor CIBC World Markets Corp., that it shall not and procure that each Buyerno broker, finder or investment banker is entitled to any brokerage, finder’s Group Undertaking shall not, unless (1) required by this Agreement or (2) is reasonably necessary in order to comply with: (i) any transaction, commitment other fee or arrangement existing as at or before the date of this Agreement; or (ii) any law, regulation, rule, official directive, request or guideline of any Authority from time to time or (3) is in connection with any equity financing commission in connection with the Transaction transactions contemplated by this Agreement based upon arrangements made by or (4) is in connection with the grant, vesting or exercise of management or employee incentive plans or equivalent of the Company:
(a) create, allot, issue, grant, acquire, repay or redeem any share capital on behalf of the Buyer, or any options, warrants or similar rights exercisable or exchangeable for or convertible into the share capital of the Buyer or agree to do any of those things; or
(b) enter into, carry out or effect any transaction, agreement or arrangement that would, or may, require a Buyer Group Undertaking to obtain, or cause the withdrawal of any existing, corporate, regulatory or other approvals necessary for the Buyer to execute, and perform its obligations under, this Agreement and each of the Buyer’s Completion Documents; and
14.2.6 to the extent permitted by Law 11.1.7 there is no claim, action, suit, arbitration, criminal or regulation, to promptly notify the Institutional Sellers’ Representative of: (a) any change, effect, event, development, occurrence, circumstance civil investigation or state of facts which has proceeding pending or would reasonably be expected to have a material and adverse effect in respect of the Buyer, (b) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated thereby, (c) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (d) any material filing, actions, suits, claims, investigations or proceedings commenced involving or, to its knowledge, threatened against it with respect to this Agreement or the Buyer’s Completion Documents, or in connection with the transactions contemplated hereby or thereby, and there is no valid basis for any such claim, action, suit, proceeding or investigation.
11.2 The Buyer undertakes to the Seller that except in the case of wilful misconduct, fraud or fraudulent misrepresentation, the Buyer and each Buyer’s Group Company:
11.2.1 has no rights against; and
11.2.2 may not make any claim against, relating any employee, director, agent, officer, shareholder or adviser of the Seller and any Seller Group Company (including for these purposes each member of the EPCI HK Group and the EPCI Singapore Group) on whom it may have relied before agreeing to any term of, or involving or otherwise affecting the Buyerentering into, this Agreement or the transactions contemplated herebyany other agreement or document referred to herein.
14.3 11.3 The Buyer warrants to the Sellers at the date of this Agreement that:
14.3.1 the Sellers have been provided with correct agrees that it shall be responsible for and complete copies of the executed (i) commitment letter, dated as of 4 September 2015, in favor of Buyer from the Financing Sources; and (ii) fee letter related thereto subject to redaction of fee amounts, pricing caps (including pricing caps in any “securities demand” provisions), economic “flex” terms and other economic provisions that are customarily redacted in connection with acquisition agreements of this type ((i) and (ii), together with all exhibits, annexes, schedules and attachments thereto, the “Commitment Letter”)), pursuant to which the Financing Sources have committed, subject to the terms and conditions of the Commitment Letter, to lend to Buyer, the amounts set forth therein (the “Financing”) for the purpose of funding the transactions contemplated by the Transaction Documents;
14.3.2 the Commitment Letter is in full force and effect and has been executed by and is binding upon all the parties thereto;
14.3.3 except as expressly set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Financing Sources to provide the Financing or any contingencies that would permit the Financing Sources to reduce the total amount of the Financing;
14.3.4 the Financing, when funded in accordance with the Commitment Letter, together with any cash and marketable securities on Buyer’s balance sheets, shall provide Buyer with the necessary cash resources to meet its cash payment obligations under the Transaction Documents; and
14.3.5 the Buyer will have sufficient cash resources available to it, on an unconditional basis, to satisfy its cash payment obligations to pay any damages to which the Sellers may become entitled for breach of the Transaction Documents.
14.4 The Buyer undertakes to maintain the Commitment Letter in full force and effect and shall ensure that there shall be no amendment, modification, termination, replacement, restatement, cancellation or other change made to the Commitment Letter that would adversely affect the ability of the Buyer to satisfy its cash payment obligations under the Transaction Documents and shall not knowingly do any act or take any step or omit to do any act or take any step that would in any way:
14.4.1 reduce the aggregate amount of the Financing available to be drawn by the Buyer thereunder;
14.4.2 reduce the period of time for which funds are available to be drawn by the Buyer; or
14.4.3 otherwise materially adversely affect the ability of the Buyer to draw funds thereunder on the Completion Date in an amount sufficient to enable the Buyer to meet its cash payment obligations under the Transaction Documents and all fees expenses and expenses required to be paid premiums that may arise and become payable as a result of or in connection with the Financing.
14.5 The Buyer further undertakes to each assignment of the Hong Kong Lease and the assignment of any leasehold interests of the Business Sellers that it shall take all action necessary to draw such amounts as it requires under the Financing on the Completion Date sufficient for the Buyer to meet its cash payment obligations under the Transaction Documents and all fees (including any VAT properly chargeable thereon) and expenses required to be paid in connection with the Financing.
14.6 To transactions contemplated pursuant to this Agreement and the extent that such funds as referred to in clause 14.5 are not capable of being drawn as a result of a failure of the relevant counterparty to perform its cash payment obligations under the Commitment Letter, the Buyer undertakes to take all reasonable actions (or procure that such action is taken) as is necessary to enforce its or Other Documents and shall reimburse any other member of the BuyerSeller’s Group UndertakingCompany for any expenses or premiums paid by any Seller’s rights against such counterparty under the relevant agreementsGroup Company in relation thereto.
Appears in 1 contract
THE BUYER’S WARRANTIES AND UNDERTAKINGS. 14.1 10.1 The Buyer warrants warrant to the Sellers that each Seller that:
10.1.1 the Buyer Warranty set out is a société à responsibilité limitée (limited liability company), duly incorporated in Schedule 6 is true, accurate Luxembourg and not misleading as at the date of has full corporate power and capacity to enter into legal transactions including this Agreement.
14.2 The Buyer undertakes , any other Transaction Document and to perform the Transaction, and has obtained all corporate approvals for the purchase of the Shares from the date of this Agreement Seller;
10.1.2 the Buyer is not: (i) subject to any winding-up, bankruptcy or other insolvency proceedings, (ii) insolvent within the Completion Date (both dates inclusive):
14.2.1 to comply with the requirements meaning of the TSX and NASDAQ which are Applicable Law relevant to this Agreement and to apply for and use commercially reasonable efforts to obtain conditional listing approval its country of the TSX and NASDAQ for the Deferred Consideration Securities, subject only to the satisfaction of customary conditions required by such exchange or market;
14.2.2 to promptly notify the Institutional Sellers’ Representative of: (a) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated therebyincorporation, (biii) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby unable to pay its debts as they fall due (and contemporaneously provide a copy of any such written notice or communication to the Sellersnor has it stopped paying his debts as they fall due), or (civ) any material filing, actions, suits, claims, investigations or proceedings commenced or threatened, in each case to its knowledge, against, relating to, involving or otherwise affecting this Agreement or the transactions contemplated hereby; and
14.2.3 to use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on the terms and conditions described herein and in the Commitment Letter prior to the Longstop Date, including (i) maintaining in effect the Commitment Letter, (ii) negotiating definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms that are acceptable to Buyer and not materially less favorable, taken as a whole to Buyer than the terms set forth in the Commitment Letter and would not adversely affect (including with respect to timing) the ability of Buyer to consummate the Transaction and (iii) satisfying on a timely basis all conditions applicable to Buyer and its subsidiaries in the Commitment Letter and the Definitive Agreements.
14.2.4 to not declare or issue dividends other than the quarterly ordinary dividend of $0.075 per common share in accordance with past practice;
14.2.5 except with the prior written consent of the Institutional Sellers’ Representative, that it shall not and procure that each Buyer’s Group Undertaking shall not, unless (1) required by this Agreement or (2) is reasonably necessary in order to comply with: (i) any transaction, commitment or arrangement existing as at or before the date of this Agreement; or (ii) any law, regulation, rule, official directive, request or guideline of any Authority from time to time or (3) is in connection with any equity financing in connection with the Transaction or (4) is in connection with the grant, vesting or exercise of management or employee incentive plans or equivalent of the Company:
(a) create, allot, issue, grant, acquire, repay or redeem any share capital of the Buyer, or any options, warrants or similar rights exercisable or exchangeable for or convertible into the share capital of the Buyer or agree to do any of those things; or
(b) enter into, carry out or effect any transaction, agreement or arrangement that would, or may, require a Buyer Group Undertaking to obtain, or cause the withdrawal of any existing, corporate, regulatory or other approvals necessary for the Buyer to execute, and perform its obligations under, this Agreement and each of the Buyer’s Completion Documents; and
14.2.6 to the extent permitted by Law or regulation, to promptly notify the Institutional Sellers’ Representative of: (a) any change, effect, event, development, occurrence, circumstance or state of facts which has or would reasonably be expected to have a material and adverse effect in respect of the Buyer, (b) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated thereby, (c) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (d) any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting with insolvency;
10.1.3 the Buyer, this Agreement or Buyer is duly represented in the transactions contemplated hereby.
14.3 The Buyer warrants to the Sellers at the date conclusion of this Agreement that:
14.3.1 the Sellers have been provided with correct and complete copies of the executed (i) commitment letter, dated as of 4 September 2015, in favor of Buyer from the Financing Sources; and (ii) fee letter related thereto subject to redaction of fee amounts, pricing caps (including pricing caps in any “securities demand” provisions), economic “flex” terms and other economic provisions that are customarily redacted in connection with acquisition agreements of this type ((i) and (ii), together with all exhibits, annexes, schedules and attachments thereto, the “Commitment Letter”)), pursuant to which the Financing Sources have committed, subject to the terms and conditions of the Commitment Letter, to lend to Buyer, the amounts set forth therein (the “Financing”) for the purpose of funding the transactions contemplated by the Transaction Documents;
14.3.2 10.1.4 the Commitment Letter Buyer has the right, power and authority, and has taken all action necessary, to execute, deliver and exercise its rights and perform its obligations under this Agreement and each Transaction Document to be executed at or before Completion to which it is expressed to be a party (“Completion Documents”);
10.1.5 the Buyer’s obligations under this Agreement and the Completion Documents are, or when the relevant Completion Document is executed will be, enforceable in accordance with their respective terms;
10.1.6 no action was taken, no claim was raised, and no proceedings were initiated against or involving the Buyer, nor is there any threat of any of actions that could have an impact on the validity, effectiveness or enforceability of this Agreement and any other Transaction Document being taken or initiated;
10.1.7 the Buyer has and will have on the Completion Date immediately available the necessary cash resources to meet its obligations under this Agreement and the Buyer’s Completion Documents including payment of the Purchase Price Tranche 1 and the Shareholder Loan Amounts;
10.1.8 on Completion the SINO-CEE Fund Guarantee will be in full force and effect and has been executed by and is legal, binding and enforceable upon all the parties thereto;
14.3.3 except as expressly set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Financing Sources to provide the Financing or any contingencies that would permit the Financing Sources to reduce the total amount of the Financing;
14.3.4 the Financing, when funded thereto in accordance with its terms;
10.1.9 the Commitment Letterexecution and delivery of, together with any cash and marketable securities on Buyer’s balance sheets, shall provide Buyer with the necessary cash resources to meet its cash payment obligations under the Transaction Documents; and
14.3.5 performance by the Buyer its obligations under, this Agreement will have sufficient cash resources available not:
(a) result in a breach of any provision of the statutes or articles of association or by-laws or equivalent constitutional documents of the Buyer;
(b) result in a breach of, or constitute a default under, any contract or instrument to itwhich the Buyer is a party or by which the Buyer is bound;
(c) result in a breach of any order, judgment or decree of any court or governmental agency to which the Buyer is a party or by which the Buyer is bound or submits to;
(d) result in any harm to any creditors of the Buyer and prevent, either wholly or partially, the Buyer from satisfying a claim of any person; or
(e) require the Buyer to obtain any consent or approval of, or give any notice to or make any registration with, any Governmental Authority which has not been obtained or made at the date hereof both on an unconditional basisbasis and on a basis which cannot be revoked (save pursuant to any legal or regulatory entitlement to revoke the same other than by reason of any misrepresentation or misstatement);
(f) the Buyer acknowledges that it and its advisors: (i) have conducted a legal, to satisfy its cash payment obligations to pay any damages to which the Sellers may become entitled for breach tax and financial due diligence of the Transaction Documents.
14.4 The Buyer undertakes to maintain the Commitment Letter in full force Project Companies, and effect have obtained and shall ensure that there shall be no amendment, modification, termination, replacement, restatement, cancellation or other change made reviewed to the Commitment Letter Buyer’s satisfaction, all the documents and information on the Project Companies that would adversely affect the ability of the Buyer to satisfy its cash payment obligations under the Transaction Documents and shall not knowingly do any act or take any step or omit to do any act or take any step that would in any way:
14.4.1 reduce the aggregate amount of the Financing available to be drawn by the Buyer thereunder;
14.4.2 reduce the period of time for which funds are available to be drawn by the Buyer; or
14.4.3 otherwise materially adversely affect the ability of the Buyer to draw funds thereunder on the Completion Date in an amount sufficient to enable the Buyer to meet its cash payment obligations under the Transaction Documents and all fees and expenses required to be paid in connection with the Financing.
14.5 The Buyer further undertakes to each of the Sellers that it shall take all action necessary to draw such amounts as it requires under the Financing on the Completion Date sufficient for the Buyer to meet its cash payment obligations under the Transaction Documents and all fees (including any VAT properly chargeable thereon) and expenses required to be paid in connection with the Financing.
14.6 To the extent that such funds as referred to in clause 14.5 are not capable of being drawn as a result of a failure of the relevant counterparty to perform its cash payment obligations under the Commitment Letter, the Buyer undertakes to take all reasonable actions (or procure that such action is taken) as is necessary to enforce its or any other member of the Buyer’s Group Undertaking, or their respective advisers have requested, before entering into this Agreement, and (ii) have been afforded an access to the management of the Project Companies and the advisors of the Seller prior to the date hereof (including to discuss, obtain clarifications or raise questions on such documents and information); and;
(g) the Buyer has no actual knowledge as at the date of this Agreement of any fact, matter or circumstance which might entitle the Buyer either at Completion or with the passing of time to make a Claim against the Seller.
10.2 The Buyer irrevocably commits to vote (or procures that any other person being a shareholder votes) at each Project Company’s rights against relevant annual shareholders’ meeting held after each Completion for the business year 2023 in favour of resolutions acknowledging the fulfilment of duties (udzielenie absolutorium) in respect of the management board members of the Project Companies for the period until the Completion (except in the case of their fraud, gross negligence (rażące niedbalstwo) or willful misconduct (wina umyślna) or other legal constraints).
10.3 For a period of one (1) year starting on the Completion Date, the Buyer will cooperate with the Seller upon the written request provided in advance in the event an information relating to each Project Company is reasonably required by the Seller to enable the preparation of quarterly, half-yearly or annual accounts of the Seller for the financial years ending last before and next after the Completion Date. In such counterparty under event the relevant agreementsSeller will provide the Buyer with written request indicating at least scope of required information and respective Project Company. The Buyer will respond without undue delay to such request and will provide and/or enable the Seller to obtain such information upon Xxxxx’s discretion. The Seller shall bear any costs related to such cooperation.
10.4 The Buyer shall procure that each Project Company, for a period of one (1) year after Completion shall retain and allow during such period the Seller or the Seller’s representatives to have (during normal business hours and following reasonable notice) reasonable access to (and copies of) the books, records, documents and information relating to each Project Company to the extent they relate to the period prior to and immediately following the Completion and to the extent reasonably required by any Seller’s Group Undertaking to comply with any Applicable Law or to make any financial statements or Tax returns or other returns or reports required by Applicable Law. In such event the Seller or the Seller’s representatives will sign a non-disclosure agreement prior to such access. The Seller shall bear any costs related to such cooperation.
Appears in 1 contract
Samples: Preliminary Share Purchase Agreement (Alternus Clean Energy, Inc.)
THE BUYER’S WARRANTIES AND UNDERTAKINGS. 14.1 The 10.1 Each Buyer severally warrants to the Sellers that each Buyer Warranty set out in Schedule 6 is true, accurate and not misleading Seller as at the date of this Agreement.Agreement and as at Completion that:
14.2 The Buyer undertakes from 10.1.1 it is duly incorporated, registered or existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement to and at the Completion Date (both dates inclusive):
14.2.1 to comply with the requirements of the TSX and NASDAQ relevant date on which are relevant any action is taken pursuant to this Agreement prior to Completion;
10.1.2 it has the requisite power and authority to enter into, and to apply for perform its obligations under this Agreement and use commercially reasonable efforts the Buyer's Completion Documents;
10.1.3 subject to obtain conditional listing approval satisfaction of the TSX Conditions, it has obtained or satisfied all corporate, regulatory and NASDAQ for the Deferred Consideration Securities, subject only to the satisfaction of customary conditions required by such exchange or market;
14.2.2 to promptly notify the Institutional Sellers’ Representative of: (a) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated thereby, (b) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (c) any material filing, actions, suits, claims, investigations or proceedings commenced or threatened, in each case to its knowledge, against, relating to, involving or otherwise affecting this Agreement or the transactions contemplated hereby; and
14.2.3 to use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on the terms and conditions described herein and in the Commitment Letter prior to the Longstop Date, including (i) maintaining in effect the Commitment Letter, (ii) negotiating definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms that are acceptable to Buyer and not materially less favorable, taken as a whole to Buyer than the terms set forth in the Commitment Letter and would not adversely affect (including with respect to timing) the ability of Buyer to consummate the Transaction and (iii) satisfying on a timely basis all conditions applicable to Buyer and its subsidiaries in the Commitment Letter and the Definitive Agreements.
14.2.4 to not declare or issue dividends other than the quarterly ordinary dividend of $0.075 per common share in accordance with past practice;
14.2.5 except with the prior written consent of the Institutional Sellers’ Representative, that it shall not and procure that each Buyer’s Group Undertaking shall not, unless (1) required by this Agreement or (2) is reasonably necessary in order to comply with: (i) any transaction, commitment or arrangement existing as at or before the date of this Agreement; or (ii) any law, regulation, rule, official directive, request or guideline of any Authority from time to time or (3) is in connection with any equity financing in connection with the Transaction or (4) is in connection with the grant, vesting or exercise of management or employee incentive plans or equivalent of the Company:
(a) create, allot, issue, grant, acquire, repay or redeem any share capital of the Buyerapprovals, or any optionsother conditions, warrants or similar rights exercisable or exchangeable for or convertible into the share capital of the Buyer or agree to do any of those things; or
(b) enter into, carry out or effect any transaction, agreement or arrangement that would, or may, require a Buyer Group Undertaking to obtain, or cause the withdrawal of any existing, corporate, regulatory or other approvals necessary for the Buyer to execute, and perform its obligations under, under this Agreement and each of its Buyer's Completion Documents;
10.1.4 this Agreement and each of the Buyer’s Completion Documents; and
14.2.6 to the extent permitted by Law 's Completion Documents constitutes or regulationwill, to promptly notify the Institutional Sellers’ Representative of: (a) any changewhen executed, effectconstitute legal, event, development, occurrence, circumstance or state of facts which has or would reasonably be expected to have a material valid and adverse effect in respect of the Buyer, (b) any notice or other communication from any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement amendment or confirmation) of such person is required in connection with this Agreement or the transactions contemplated thereby, (c) any notice or other communication from any Governmental Entity in connection with this Agreement or the transactions contemplated hereby (and contemporaneously provide a copy of any such written notice or communication to the Sellers), or (d) any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Buyer, this Agreement or the transactions contemplated hereby.
14.3 The Buyer warrants to the Sellers at the date of this Agreement that:
14.3.1 the Sellers have been provided with correct and complete copies of the executed (i) commitment letter, dated as of 4 September 2015, in favor of Buyer from the Financing Sources; and (ii) fee letter related thereto subject to redaction of fee amounts, pricing caps (including pricing caps in any “securities demand” provisions), economic “flex” terms and other economic provisions that are customarily redacted in connection with acquisition agreements of this type ((i) and (ii), together with all exhibits, annexes, schedules and attachments thereto, the “Commitment Letter”)), pursuant to which the Financing Sources have committed, subject to the terms and conditions of the Commitment Letter, to lend to Buyer, the amounts set forth therein (the “Financing”) for the purpose of funding the transactions contemplated by the Transaction Documents;
14.3.2 the Commitment Letter is in full force and effect and has been executed by and is binding upon all the parties thereto;
14.3.3 except as expressly set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Financing Sources to provide the Financing or any contingencies that would permit the Financing Sources to reduce the total amount of the Financing;
14.3.4 the Financing, when funded it in accordance with the Commitment Letter, together with any cash and marketable securities on Buyer’s balance sheets, shall provide Buyer with their respective terms;
10.1.5 it has (or at Completion will have) available (subject only to Completion) the necessary cash resources to meet its cash payment obligations under the Transaction Documents; and
14.3.5 the Buyer will have sufficient cash resources available to it, on an unconditional basis, to satisfy its cash payment obligations to pay any damages to which the Sellers may become entitled for breach of the Transaction Documents.
14.4 The Buyer undertakes to maintain the Commitment Letter Clause 3 in full force and effect and shall ensure that there shall be no amendment, modification, termination, replacement, restatement, cancellation or other change made to the Commitment Letter that would adversely affect the ability of the Buyer to satisfy its cash payment obligations under the Transaction Documents and shall not knowingly do any act or take any step or omit to do any act or take any step that would in any way:
14.4.1 reduce the aggregate amount of the Financing available to be drawn by the Buyer thereunderwithout set off;
14.4.2 reduce the period of time for which funds are available to be drawn by the Buyer; or
14.4.3 otherwise materially adversely affect the ability of the Buyer to draw funds thereunder on the Completion Date in an amount sufficient to enable the Buyer to meet its cash payment obligations under the Transaction Documents and all fees and expenses required to be paid 10.1.6 in connection with the FinancingTransaction, neither it nor any of its respective directors, officers, employees, agents or other persons acting on behalf of the Buyer, directly or indirectly has:
(a) violated any applicable Anti-Corruption Laws in any material respect; or
(b) made, offered or promised to make, or authorized the unlawful payment or unlawful giving of money, or anything else of value, to any (i) executive, official, employee or person acting in an official capacity for or on behalf of an Establishment, (ii) Government Official, or (iii) any other person, while knowing or believing that all or some portion of the money or value will be offered, given or promised to a Government Official or other person for the purposes of obtaining or retaining business or securing any improper advantage or in other circumstances when such offer, payment or promise would be unlawful; or
(c) been, so far as the Buyer is aware, the subject of any material investigation by any Establishment with regard to any actual or alleged breach of any Anti-Corruption Law;
10.1.7 it is in compliance in all material respects with all AML Laws in the jurisdiction in which it operates; and
10.1.8 it is not the subject of any Sanctions.
14.5 The 10.2 Each Buyer further undertakes to each of the Sellers that it shall shall:
10.2.1 take all action necessary to draw such amounts as it requires under the Financing on the Completion Date sufficient for the Buyer to meet its cash payment obligations under the Transaction Documents and all fees (including any VAT properly chargeable thereon) and expenses required to be paid in connection with the Financing.
14.6 To the extent that such funds as referred to in clause 14.5 are not capable of being drawn as a result of a failure of the relevant counterparty to perform its cash payment obligations under the Commitment Letter, the Buyer undertakes to take all reasonable actions (or procure that such action is there are taken) as is all necessary steps to enforce draw down the amounts payable to it pursuant to its or any other member Equity Commitment Letter in respect of the Buyer’s Group Undertaking’s rights against Initial Consideration at or prior to Completion; and
10.2.2 subject to (i) satisfaction and/or waiver of the Conditions in accordance with Clause 5 and (ii) the Buyers being obliged to proceed to Completion under this Agreement, apply all funds advanced to it under its Equity Commitment Letter to pay the Initial Consideration in accordance with this Agreement and for no other purpose until (and only to the extent) such counterparty under amount has been paid to the relevant agreementsSeller.
Appears in 1 contract
