Page | ||
ARTICLE I DEFINITIONS | 1 | |
1.1 | Definitions | 1 |
ARTICLE II SALE AND PURCHASE | 1 | |
2.1 | Sale and Purchase | 1 |
2.2 | Purchase Price | 2 |
2.3 | Purchase Price Adjustment | 2 |
2.4 | Withholding Taxes | 6 |
2.5 | Assumption of Indebtedness | 8 |
2.6 | Claims Retained by IC Power Ltd | 8 |
2.7 | Purchase Price Allocation | 8 |
ARTICLE III CLOSING AND DELIVERIES | 8 | |
3.1 | Closing | 8 |
3.2 | Deliveries by the Sellers | 8 |
3.3 | Deliveries by Buyers | 10 |
3.4 | Basis Certificate Escrow Account | 11 |
3.5 | Casualty and Condemnation Escrow Account | 11 |
3.6 | Kanan Project Escrow Account | 11 |
3.7 | Withholding Tax Escrow Account | 12 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES AND THE SUBSIDIARIES | 12 | |
4.1 | Organization and Standing | 12 |
4.2 | Capitalization | 12 |
4.3 | Subsidiaries | 13 |
4.4 | No Conflict; Required Filings and Consents | 13 |
4.5 | Financial Statements; No Undisclosed Liabilities | 14 |
4.6 | Insolvency | 15 |
4.7 | Absence of Certain Changes | 15 |
4.8 | Taxes | 15 |
4.9 | Real Property | 18 |
4.10 | Sufficiency of Assets; Tangible Personal Property | 18 |
4.11 | Compliance with Laws | 18 |
4.12 | Permits | 19 |
4.13 | Employee Matters | 19 |
4.14 | Material Contracts | 21 |
4.15 | Books and Records | 23 |
4.16 | Internal Controls | 24 |
4.17 | Legal Proceedings | 24 |
4.18 | Intellectual Property | 24 |
4.19 | Insurance | 24 |
4.20 | Environmental Matters | 25 |
4.21 | Compliance with Anti-Corruption Laws | 26 |
4.22 | No Brokers | 27 |
4.23 | Change of Control | 27 |
4.24 | Data Room | 27 |
4.25 | Customers and Suppliers | 27 |
4.26 | No Other Representations and Warranties | 28 |
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER | 28 | |
5.1 | Organization | 28 |
5.2 | Authority, Validity and Effect | 28 |
5.3 | No Conflict; Required Consent | 29 |
5.4 | Title | 29 |
5.5 | Legal Proceedings | 29 |
5.6 | No Brokers | 29 |
5.7 | No Other Representations and Warranties | 30 |
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYERS | 30 | |
6.1 | Organization | 30 |
6.2 | Authority, Validity and Effect | 30 |
6.3 | No Conflict; Required Consents | 31 |
6.4 | Independent Investigation; No Reliance | 31 |
6.5 | Financial Capacity | 31 |
6.6 | Solvency | 32 |
6.7 | Legal Proceedings | 32 |
6.8 | Compliance with Anti-Corruption Laws | 32 |
6.9 | No Brokers | 33 |
6.10 | No Other Representations and Warranties | 33 |
ARTICLE VII COVENANTS AND AGREEMENTS | 33 | |
7.1 | Interim Operations of the Acquired Companies | 33 |
7.2 | Reasonable Access; Financial Assistance | 36 |
7.3 | Update and Disclosure | 38 |
7.4 | Publicity | 38 |
7.5 | Reasonable Efforts; Cooperation; Regulatory Filings | 38 |
7.6 | Contact with Customers, Suppliers and Other Business Relations | 40 |
7.7 | Financing Cooperation | 40 |
7.8 | Further Assurances | 42 |
7.9 | Support Obligations | 42 |
7.10 | Minimum Cash; Restricted Cash | 43 |
7.11 | Interim Operating Covenants Concerning Anti-Corruption Laws | 43 |
7.12 | Casualty and Condemnation | 44 |
7.13 | Kanan Project | 46 |
7.14 | Agua Clara Debt | 51 |
7.15 | Intercompany and Intragroup Balances | 51 |
7.16 | Other Transaction Agreements | 51 |
ARTICLE VIII CONDITIONS TO CLOSING | 51 | |
8.1 | Conditions to Obligations of the Seller | 51 |
8.2 | Conditions to Obligations of Buyers | 52 |
8.3 | Frustration of Closing Conditions | 53 |
ARTICLE IX TERMINATION OF AGREEMENT | 54 | |
9.1 | Termination | 54 |
9.2 | Effect of Termination | 55 |
ARTICLE X SURVIVAL; INDEMNIFICATION | 55 | |
10.1 | Survival | 55 |
10.2 | Indemnification by Buyers | 56 |
10.3 | Indemnification by Sellers | 57 |
10.4 | Exclusive Remedy | 58 |
10.5 | Limitations | 58 |
10.6 | Procedures | 60 |
10.7 | Subrogation | 62 |
10.8 | Mitigation | 62 |
10.9 | Adjustment to Purchase Price | 62 |
10.10 | Setoff Rights | 62 |
ARTICLE XI TAX MATTERS | 63 | |
11.1 | Transfer Taxes | 63 |
11.2 | Tax Returns | 63 |
11.3 | Straddle Period Tax Liabilities | 64 |
11.4 | Assistance and Cooperation | 64 |
11.5 | Audits | 64 |
11.6 | Certain Actions | 65 |
11.7 | Tax Refunds | 65 |
11.8 | Limitation on Sellers’ Rights | 66 |
ARTICLE XII MISCELLANEOUS AND GENERAL | 66 | |
12.1 | Expenses | 66 |
12.2 | Successors and Assigns | 67 |
12.3 | Third Party Beneficiaries | 67 |
12.4 | Notices | 67 |
12.5 | Complete Agreement | 69 |
12.6 | Captions | 69 |
12.7 | Amendment | 69 |
12.8 | Governing Law | 69 |
12.9 | Consent to Jurisdiction and Service of Process | 69 |
12.10 | Severability | 71 |
12.11 | Construction | 71 |
12.12 | Counterparts | 71 |
12.13 | No Recourse | 71 |
12.14 | Waivers | 72 |
Exhibit A | Form of Mutual Release |
Exhibit B | Form of Local Transfer Agreements |
Exhibit C | Buyer Guarantee |
Exhibit D | The Deferred Payment Agreement Term Sheet, the Collateral Agreement Term Sheet, and the form of Seller Guarantee |
Exhibit E | Form of Contingent Payment and Assignment Agreement |
Exhibit F | Form of Transition Services Agreement |
Schedule 1.1(a) | Cash Extraction Costs |
Schedule 1.1(b) | Buyers’ Knowledge Persons |
Schedule 1.1(c) | Development Projects |
Schedule 1.1(d) | Relevant Material Contract Amount |
Schedule 1.1(e) | Sellers’ Knowledge Persons |
Schedule 2.3(a) | Estimated Closing Statement |
Schedule 2.4 | Withholding |
Schedule 3.2(d) | Resigning Directors |
Schedule 3.2(j) | Intercompany Support Obligations |
Schedule 4.2 | Capitalization |
Schedule 4.3(a) | Subsidiaries |
Schedule 4.3(b) | Ownership |
Schedule 4.4(b) | Conflicts and Consents |
Schedule 4.5(d) | Liabilities Related to Certain Matters |
Schedule 4.7(a) | Absence of Change (MAE) |
Schedule 4.7(b) | Absence of Change (Other) |
Schedule 4.8 | Taxes |
Schedule 4.8(j) | Tax Exemptions |
Schedule 4.9 | Real Property |
Schedule 4.10(c) | Tangible Personal Property |
Schedule 4.11 | Compliance with Laws |
Schedule 4.12(a) | Material Permits |
Schedule 4.12(b) | Future Development Permits |
Schedule 4.13(b) | Labor Agreements |
Schedule 4.13(c) | Labor Issues |
Schedule 4.13(d) | Acceleration |
Schedule 4.13(h) | Director/Officer/Employee Lists |
Schedule 4.14(a) | Material Contracts |
Schedule 4.17 | Legal Proceedings |
Schedule 4.18(a) | IP Ownership |
Schedule 4.18(b) | IP Issues |
Schedule 4.19 | Insurance |
Schedule 4.20 | Environmental |
Schedule 4.23 | Change in Control |
Schedule 4.25(a) | Suppliers |
Schedule 4.25(b) | Customers |
Schedule 5.3 | Conflicts |
Schedule 6.3(b) | Consents (to be provided by Buyers) |
Schedule 7.1(a) | Interim Operating Covenants |
Schedule 7.2(c) | Financial Statements Assistance |
Schedule 7.15 | Intercompany Balances |
Schedule 8.2(g) | Audited Financials (List of Subsidiaries) for 2018 Closing |
Schedule 12.14 | Waiver Counsel |
Annex I | Definitions |
(i) | $1,177,000,000 (the “Base Purchase Price”); |
(ii) | plus any Estimated Working Capital Adjustment; |
(iii) | minus any Estimated Debt Adjustment; |
(iv) | minus the Closing Date Escrow Amount (if any); |
(v) | plus the Estimated Excess Cash Adjustment; and |
(vi) | plus the Estimated Agua Clara Contribution Amount, |
REPRESENTATIONS AND WARRANTIES OF SELLER
REPRESENTATIONS AND WARRANTIES OF BUYERS
6.9 No Brokers. Other than Credit Suisse, no broker, finder or similar agent has been employed by or on behalf of any Buyer, and no Person with which any Buyer has had any dealings or communications of any kind is entitled to any brokerage commission, finder’s fee or other payment, directly or indirectly, in connection with this Agreement or the transactions contemplated hereby.
6.10 No Other Representations and Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE VI, BUYERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED AND IF MADE, SUCH OTHER REPRESENTATIONS OR WARRANTIES MAY NOT BE RELIED UPON BY SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES.
ARTICLE VII
COVENANTS AND AGREEMENTS
7.1 Interim Operations of the Acquired Companies.
(a) From the date of this Agreement until the Closing or the earlier termination of this Agreement, except (i) as set forth on Schedule 7.1(a), (ii) as otherwise contemplated by this Agreement, (iii) as required by applicable Law or any existing Contract or (iv) with the prior written consent of any Buyer (which consent shall not be unreasonably withheld, delayed, or conditioned, and which will be deemed granted if such Buyer does not respond to a written request for consent within five (5) Business Days), the Acquired Companies shall not and shall not permit the Subsidiaries to:
(A) (1) create, incur or assume any Debt, other than short-term borrowings under existing lines of credit, or lines of credit renewed or extended consistent with past practice on substantially the same terms as those existing as of the date hereof, utilized in the ordinary course of business and Debt between the Acquired Companies and the Subsidiaries (provided that the Acquired Companies and Subsidiaries shall not draw down on the line of credit marked with a “y” on Schedule 4.4(b)), (2) enter into any Support Obligations except in the ordinary course of business consistent with past practice and to replace existing Debt, without any increase in the aggregate amount of Debt incurred, (3) make any Investment in any Person (other than the Acquired Companies and the Subsidiaries), or (4) subject any of its material properties or assets to any Liens (other than Permitted Liens);
(B) (1) except in the ordinary course of business consistent with past practice, acquire, sell, transfer or dispose of, any material property or assets, pertaining to the respective businesses of the Acquired Companies and the Subsidiaries from or to any Person or (2) acquire the Equity Securities, business, operations or Liabilities of any Person (or division of unit of any Person) in excess of $1,000,000 for the Acquired Companies and Subsidiaries domiciled in the Republic of Peru, $750,000 for Energuate and $500,000 for all the other Acquired Companies and Subsidiaries, in each case, excluding any transactions among the Acquired Companies and the Subsidiaries;
(C) (i) make any commitment for capital expenditures in excess of $3,000,000 in the aggregate for the Group (excluding Energuate) and $200,000 for individual expenditures in each Acquired Company and Subsidiary except for those domiciled in Peru, or (ii) make any commitment for capital expenditures in excess of $3,000,000 in the aggregate for Energuate, in each of clauses (i) and (ii) that would not be payable until after the Closing Date and is not otherwise accounted for in the Closing Statement;
(D) enter into any Contracts with any Affiliates of the Acquired Companies, excluding, in each case, any Contracts among the Acquired Companies and the Subsidiaries;
(E) except to the extent required by Law or any existing Contract, enter into, adopt, amend or terminate any Contract relating to severance or the compensation in respect of any employee of the Acquired Companies or Subsidiaries with an annual salary in excess of $100,000;
(F) terminate, establish, adopt, enter into, make any new grants or awards of compensation or other benefits under, amend or otherwise materially modify any Benefit Plan, other than in the ordinary course of business consistent with past practice;
(G) liquidate, dissolve or otherwise wind up any businesses or operations of the Acquired Companies and Subsidiaries;
(H) enter into any Contract that would be a Material Contract if it were in effect on the date hereof, or amend, modify, grant a waiver in respect of, cancel, terminate or consent to the termination of any Material Contract or Permit other than (1) entering into any Contract in the ordinary course of business to the extent such Contract is necessary or advisable for any Acquired Company or any Subsidiary to conduct its respective business as presently conducted, (2) any amendment, modification, or waiver which is not material to such Material Contract or Permit, (3) Contracts of the type contemplated by (and specifically permitted under) any other subsection of this Section 7.1(a) and (4) any termination of a Material Contract that results from the expiration or complete performance of the Material Contract in accordance with the terms thereof;
(I) enter into any material Contract for the purchase of Real Property or any Contract for the lease of Real Property or with respect to any Real Property Rights;
(J) make any material change to its accounting (including Tax accounting) methods, principles or practices, except as may be required by IFRS;
(K) make any amendment to its Organizational Documents;
(L) waive, release, assign, settle, compromise, pay, discharge or satisfy any Action (which shall include, but not be limited to, any pending or threatened Action) that exceeds $1,500,000 in the aggregate;
(M) enter into or agree to enter into any merger or consolidation with any Person (other than a merger among the Acquired Companies and its Subsidiaries approved by the Buyers);
(N) engage in any material new line of business;
(O) (1) issue, grant, deliver, sell, transfer or propose to issue, grant, deliver, sell or transfer, or purchase or propose to purchase any Equity Securities of the Acquired Companies or the Subsidiaries, (2) split, combine or subdivide the Equity Securities of the Acquired Companies or the Subsidiaries or (3) create or suffer to exist any Lien upon the Equity Securities of the Acquired Companies or the Subsidiaries (other than Permitted Liens);
(P) (1) make or change any material election with respect to Taxes, (2) change any material Tax accounting method, (3) settle any material Tax claim, (4) amend any material Tax Return, (5) file any Tax Return that is prepared on a basis that is materially inconsistent with the elections, accounting methods, conventions and principles of taxation used for the most recent taxable periods for which comparable Tax Returns involving similar Tax items have been filed, (6) waive any material Tax refund claim, or (7) consent to any material extension or waiver of the limitation period applicable to any Tax assessment, reassessment or deficiency;
(Q) other than in the ordinary course of business consistent with past practice, transfer, license, encumber, abandon, allow to lapse or otherwise dispose of any rights to material Intellectual Property used in connection with the respective businesses of the Acquired Companies and the Subsidiaries;
(R) amend in a manner materially detrimental to the Acquired Companies and the Subsidiaries, terminate, allow to lapse or fail to renew any Permit held by the Acquired Companies or the Subsidiaries or fail to obtain any Permit required by Law for the conduct of the respective businesses of the Acquired Companies and the Subsidiaries;
(S) fail to maintain insurance coverage substantially equivalent to its insurance coverage as in effect on the date hereof; or
(T) agree in writing or otherwise make any commitment to do any of the foregoing in this Section 7.1.
(b) Sellers covenant and agree that except (i) as otherwise expressly required by this Agreement, (ii) with the prior written consent of any Buyer (which consent shall not be unreasonably withheld, delayed, or conditioned, and which will be deemed granted if such Buyer does not respond to a written request for consent within five (5) Business Days), from the date of this Agreement until the Closing or the earlier termination of this Agreement, Sellers shall cause the Acquired Companies and the Subsidiaries to be operated in the ordinary course of business consistent with past practice and shall use Commercially Reasonable Efforts to (A) preserve, maintain and protect all material assets and properties of the Company, the Subsidiaries and their respective businesses, (B) maintain all material Permits held by the Acquired Companies and any Subsidiary, (C) maintain the Company’s or any Subsidiary’s relationships with customers, suppliers and Governmental Authorities, (D) cause the Acquired Companies and the Subsidiaries to perform in all material respects the Material Contracts and (E) cause the Acquired Companies and the Subsidiaries to comply in all material respects with applicable Laws, Orders and Material Permits.
7.2 Reasonable Access; Financial Assistance.
(a) Prior to the Closing Date or the date on which this Agreement is earlier terminated, Sellers shall, and shall cause the Acquired Companies and the Subsidiaries to, upon reasonable prior notice by any Buyer, permit Buyers, their Affiliates and their and their Affiliates’ agents and representatives, to have access to the properties, books, records and management personnel of the Acquired Companies and the Subsidiaries during normal business hours to review information and documentation relevant to the properties, books, Contracts, commitments and other records of the Acquired Companies and the Subsidiaries and discuss with the management personnel of the Acquired Companies and the Subsidiaries the operation of their respective businesses; provided, however, that any such access by, or furnishing of information to, Buyers, their Affiliates or their or their Affiliates’ agents or representatives shall not unreasonably disrupt the personnel and operations of the Acquired Companies and the Subsidiaries and shall be at Buyers’ sole cost and expense. Notwithstanding the foregoing, Sellers shall not be required to provide any access or information to any Buyer, its Affiliates or its or its Affiliates’ agents and representatives which Sellers are prohibited from providing to such Persons by reason of applicable Law or Contract or which constitutes or allows access to information protected by attorney-client privilege.
(b) From and after the Closing Date, each Buyer shall cause the applicable Acquired Companies and Subsidiaries to preserve and keep all books, records, computer files, software programs and any data processing files (including consolidation files) of the applicable Acquired Companies and Subsidiaries that relate to pre-Closing periods for a period of not less than seven (7) years from the Closing Date. For a period of not less than the later of (i) seven (7) years from the Closing Date and (ii) in relation to any Action or threatened Action, for so long as any such Action or threatened Action is outstanding (provided that Sellers gave written notice to the applicable Buyer of such Action or threatened Action reasonably promptly upon becoming aware of such Action and, in any event, prior to such Action being barred by the applicable statute of limitations), each Buyer will, upon reasonable prior notice from Seller: (i) provide Sellers and their Affiliates with reasonable access to all documents and information that relate to pre-Closing periods retained by the applicable Acquired Companies and Subsidiaries as necessary to complete Sellers’ and their Affiliate’s accounting books and records consistent with past practice and in order to assist Sellers and their Affiliates in the preparation of their financial statements in accordance with Section 7.2(c); (ii) make such books and records available to Sellers and their Affiliates as may be reasonably required by Sellers and their Affiliates in connection with any audit, investigation, dispute, litigation or any other reasonable business purpose; and (iii) permit Sellers and their Affiliates to make such inspections of such books and records as they may reasonably require; provided, however, that any such access by, or furnishing of information to, Sellers or their Affiliates shall not unreasonably disrupt the personnel and operations of the Acquired Companies and the Subsidiaries and shall be at Sellers’ sole cost and expense. Notwithstanding the foregoing, no Buyer shall be required to provide any access or information to Sellers or their Affiliates which such Buyer is prohibited from providing to such Persons by reason of applicable Law or which constitutes or allows access to information protected by attorney-client privilege.
(c) From and after Closing, each Buyer shall cause the applicable Acquired Companies and Subsidiaries to, use Commercially Reasonable Efforts to provide assistance to Sellers and their Affiliates in connection with the preparation and audit or review of any financial statements of Sellers or their Affiliates relating to the Acquired Companies and the Subsidiaries for pre-Closing periods that Sellers (or the relevant Affiliate) determines, in its reasonable discretion, are required or advisable under applicable Laws (including applicable securities laws and regulations) or stock exchange rules (the “Financial Statement Assistance”). As part of the Financial Statement Assistance (and without limiting the generality of the foregoing), each Buyer shall use Commercially Reasonable Efforts to (i) cause the applicable Acquired Companies’ and Subsidiaries’ accountants and auditors to be available to Sellers, their Affiliates or their accountants and auditors (upon reasonable prior notice and at mutually agreeable times) to respond to questions and information requests and otherwise provide assistance to the extent reasonably necessary in connection with Sellers’ preparation and audit or review of any such financial statements and internal control reports and auditor attestations, such assistance to include the matters set forth in Schedule 7.2(c), and (ii) cause its managers, officers and other agents to execute and deliver any and all management representation letters and other certificates or other documents or information as may reasonably be requested by Sellers, their Affiliates or their accountants in connection with the preparation and/or audit of any such financial statements for pre-Closing periods. Each Buyer shall, and shall use Commercially Reasonable Efforts to cause the applicable Acquired Companies and Subsidiaries to, provide any other information and cooperation reasonably requested by Sellers or their Affiliates in connection with their requirements under applicable regulation or stock exchange rules. Sellers will pay or, if paid, promptly reimburse each Buyer, as applicable, following invoice from such Buyer, for any reasonable out-of-pocket and overhead costs incurred by the Acquired Companies and Subsidiaries in complying with the provisions of this Section 7.2(c).
7.3 Update and Disclosure. Prior to the Closing (but in any event, on or before the fifth (5th) Business Day prior to the Closing), the Sellers may deliver to Buyers in writing supplements or updates to the Schedules reflecting Post-Signing Events (a “Schedule Update”). If Buyers have the right to terminate this Agreement pursuant to Section 9.1(f) as a result of any Post-Signing Event set forth in a Schedule Update and do not exercise such right within ten (10) Business Days thereof, then such Schedule Update shall be deemed to have amended the Schedules as of the date of this Agreement, to have qualified the representations and warranties contained in ARTICLE IV and ARTICLE V as of the date of this Agreement and to have cured any misrepresentation or breach of warranty that otherwise might have existed hereunder by reason of the existence of such Post-Signing Event. Sellers shall provide to Buyers any information relating to any Schedule Update reasonably requested by Buyers. For the avoidance of doubt, if Buyers would not have the right to terminate this Agreement pursuant to Section 9.1(f) as a result of any Post-Signing Event set forth in a Schedule Update, then such Schedule Update shall not be deemed to have amended the Schedules as of the date of this Agreement, to have qualified the representations and warranties contained in ARTICLE IV and ARTICLE V as of the date of this Agreement or to have cured any misrepresentation or breach of warranty that may exist hereunder by reason of the existence of such Post-Signing Event.
7.4 Publicity. Except as may be required to comply with the requirements of any applicable Law or stock exchange rules (as such requirements are reasonably interpreted by the disclosing Party), no Party will issue any press release or other public announcement relating to the subject matter of this Agreement or the transactions contemplated hereby without the prior written approval (which approval will not be unreasonably withheld or delayed) of the other Party; provided, however, that after the Closing, each Party and its respective Affiliates will be entitled to issue any such press release and make any such other public announcement concerning the transactions contemplated hereby, without obtaining prior approval of the other Party, and Sellers and their Affiliates shall be permitted to file this Agreement to the extent required by the rules and regulations promulgated under the U.S. Securities Exchange Act of 1934.
7.5 Reasonable Efforts; Cooperation; Regulatory Filings.
(a) Subject to the provisions of this Section 7.5(a), each of the Parties agrees to use Commercially Reasonable Efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement and to obtain satisfaction or waiver of the conditions precedent to the consummation of the transactions contemplated hereby, including (i) obtaining all of the necessary Permits and Consents from Governmental Authorities or other Persons, including the Consents set forth on Schedule 4.4(b) and Schedule 6.3(b), (ii) the preparation and filing of all applications, notices, petitions, filings and other documents, and the taking of all steps, necessary to (A) obtain any Permits or Consents from Governmental Authorities or other Persons and (B) avoid any Action and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. The Sellers shall use their Commercially Reasonable Efforts to refinance the Debt issued under the instrument marked with an “x” on Schedule 4.4(b).
(b) Each Party will use Commercially Reasonable Efforts to prepare and file, or cause to be prepared and filed, as promptly as practicable (but in any event within 30 days after the date hereof), all filings and submissions with or to any Governmental Authority under any Laws applicable to such Party and its Affiliates and required for the consummation of the transactions contemplated herein and, in each case, include in each filing or submission a request for early termination or acceleration of any applicable waiting or review periods, to the extent available under the applicable Laws. Subject to applicable Laws relating to the exchange of information, each Party will have the right to review in advance, and to the extent practicable will consult with each other Party on, all the information that is required to appear in any such filings or submissions. In exercising the foregoing right, each Party will act reasonably and as promptly as practicable. Buyers will pay all fees associated with all filings and submissions referred to in this Section 7.5(b).
(c) Subject to Section 7.5(f), each Party will comply with any additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Authority. Each Party agrees to use Commercially Reasonable Efforts to take any and all steps necessary to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Authority or any other Person so as to enable the Parties to expeditiously close the transactions contemplated hereby.
(d) Except as specifically required by this Agreement and subject to Section 7.5(f), none of the Parties will take any action, or refrain from taking any action, the effect of which would be to delay or impede the ability of the Parties to consummate the transactions contemplated hereby. Without limiting the generality of the foregoing, the Parties will not, and will not permit any of their Affiliates to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any permits, orders or other approvals of any Governmental Authority necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) increase the risk of not being able to remove any such order on appeal or otherwise, or (iv) delay or prevent the consummation of the transactions contemplated hereby beyond the Termination Date.
(e) Each Party will keep each other Party apprised of the status of all filings and submissions referred to in Section 7.5(b), including promptly furnishing each other Party with copies of notices or other substantive communications received by such Party in connection therewith. None of the Parties will permit any of their respective officers, employees or other representatives or agents to participate in any meeting with any Governmental Authority in respect of such filings and submissions unless it consults with the other Party in advance and, to the extent permitted by such Governmental Authority, gives the other Party and its counsel and its representatives the opportunity to attend and participate thereat.
(f) Nothing in this Section 7.5 shall require any Party (without such Party’s prior written consent) to (i) litigate, pursue, defend or otherwise contest any Action or Order prohibiting, enjoining, restraining, conditioning or otherwise restricting in any material respect the transactions contemplated by this Agreement, (ii) execute settlements, undertakings, consent decrees, stipulations or other Contracts with any Governmental Authority, (iii) agree to sell, divest or otherwise convey any particular assets or categories of assets or businesses of such Party or its Affiliates prior to, contemporaneously with or subsequent to the Closing or (iv) become subject or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, undertaking, Order or Contract of any Governmental Authority (A) to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any of such Party’s or its Affiliates’ businesses or assets, (B) that limits the freedom of action of such Party or its Affiliates with respect to the ownership or operation of, or their ability to retain, the Company, the Subsidiaries or their respective businesses or (C) that alters, changes or restricts in any way the business or commercial practices of such Party or its Affiliates.
(g) For the avoidance of doubt, failure to obtain the statutory approvals not marked with an asterisk on Schedule 4.4(b) and Schedule 6.3(b) prior to satisfaction or waiver of the conditions set forth in ARTICLE VIII shall not in any manner impede or delay the Closing, and following the Closing, Buyers shall be solely responsible for (a) pursuing and obtaining such approvals and (b) complying with the results and conditions thereof without any recourse to Sellers (including without any claim or right to indemnification under Section 10.3); provided that Sellers shall have materially complied with its obligations in this Section 7.5 prior to Closing.
7.6 Contact with Customers, Suppliers and Other Business Relations. To the extent permitted by applicable Law, prior to the Closing, Buyers and their Affiliates and representatives may contact and communicate with the employees, customers and suppliers of the Acquired Companies and the Subsidiaries in connection with the transactions contemplated hereby only after prior consultation with and written approval of Sellers (which approval may not be unreasonably withheld, delayed or conditioned).
7.7 Financing Cooperation. Until Closing, Sellers shall, and shall cause the Acquired Companies and Subsidiaries (and their Affiliates’ employees, counsel, and accountants) to, use Commercially Reasonable Efforts to take, at Buyers’ sole cost and expense, such actions as may be reasonably requested by any Buyer in connection with arranging and obtaining any financing (including the issuance by Seller 1 of Additional Notes (as defined in the Note Indenture) of an amount up to $150 million), including:
(a) assisting Buyers and each agent, arranger, lender, investor, potential agent, potential arranger, potential lender, potential investor, underwriter, initial purchaser and placement agent providing or potentially providing, or acting in connection with, any financing, or any Affiliate of such Person (each of the foregoing, and each of its respective officers, controlling persons, directors, employees, agents, counsel and representatives or any respective successors and assigns, a “Financing Source”) in the preparation of customary (i) offering documents, private placement memoranda and bank information memoranda and similar marketing documents (including providing such information and data in connection therewith as any Buyer shall reasonably request), including the execution and delivery of customary representation letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, non-public information regarding the respective businesses of the Acquired Businesses and the Subsidiaries and (ii) materials for rating agency presentations;
(b) cooperating with the marketing efforts for any financing, including participating in a reasonable number of customary meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with prospective lenders, initial purchasers, investors and rating agencies, including direct contact with senior management of the respective businesses of the Acquired Businesses and the Subsidiaries (and other employees with appropriate seniority and expertise) and advisors, in each case, at times and locations to be mutually agreed upon;
(c) furnishing, to the extent available, all financial statements, financial data, audit reports and such other financial information regarding the respective businesses of the Acquired Companies and the Subsidiaries of the type and form required by Regulation S-K or Form 20-F (including, without limitation, Item 303 Management’s Discussion and Analysis of Financial Condition and Results of Operations and Item 301 Selected Financial Data) and Regulation S-X under the Securities Act of 1933, as amended (the “Securities Act”), for offerings of non-convertible debt securities on a registration statement on Form S-1 or Form F-1, as applicable, but in each case limited to, as applicable for any part of any financing, (i) the type and form customarily included in a private placement of debt securities pursuant to Rule 144A promulgated under the Securities Act, and (ii) the type and form customarily included in offering documents used to syndicate any credit facilities (whether term loan A, loan B, project finance or otherwise). Buyers are aware that no audited consolidated financial statements of the Group exist and nothing in this Section 7.7 shall require Sellers to procure audited consolidated financial statements of the Group;
(d) causing the independent accountants of the Acquired Companies and the Subsidiaries to provide assistance and cooperation, including providing customary consents and comfort letters in connection with any financing;
(e) cooperating, to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Acquired Companies and the Subsidiaries, in satisfying the conditions precedent set forth in any definitive document relating to any financing to the extent that such cooperation is reasonable and customary; and
(f) upon request, furnishing any documentation and other information required by a Governmental Authority or Financing Source under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2001.
Notwithstanding anything to the contrary contained herein, Buyers shall, promptly upon request by Sellers, reimburse Sellers for all reasonable and documented out-of-pocket costs (including accountants’ and legal fees) incurred by Sellers or any of their Affiliates in connection with such cooperation (including any fees incurred by the Acquired Companies or the Subsidiaries). Each Buyer shall indemnify and hold harmless Sellers and their Affiliates, and each of their representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of any financing and any information utilized in connection therewith (other than information provided by Sellers or any of their or their Affiliates’ employees, counsel, and accountants). Notwithstanding the foregoing, (A) nothing contained in this Section 7.7 shall require cooperation with Buyers to the extent it would materially and unreasonably interfere with the ongoing customary operations of the respective businesses of the Acquired Companies and the Subsidiaries (provided, that the delivery of financial information referred to above (to the extent available) and the information required by Item 303 Management’s Discussion and Analysis of Financial Condition and Results of Operations of Regulation S-K shall not constitute such interference), encumber any of the Acquired Interests or Subsidiary Interests prior to Closing, require Sellers to pay any commitment or other fee or make any other payment in connection with any financing, could reasonably be expected to cause Sellers, the Acquired Companies or any of their respective Affiliates or any director, officer or employee or stockholder of the foregoing to incur any personal liability, or would cause any representation or warranty or covenant in this Agreement to be breached by Sellers, (B) neither Sellers nor their Affiliates, including the Acquired Companies and Subsidiaries, nor Sellers nor any of their or their Affiliates’ (including the Acquired Companies and Subsidiaries) respective directors or officers shall (1) be required to take any action in their capacity as directors, members or managers to authorize or approve any financing, (2) have any liability or any obligation under any definitive agreement or any other agreement or document related to any financing (except with respect to any customary authorization letters contemplated by this Section 7.7) or (3) enter into any definitive agreement in connection with any financing that would be effective prior to the Closing Date and (C) nothing in this Section 7.7 shall be deemed a condition to any Buyer’s obligation to effect the Closing.
7.8 Further Assurances. Each Seller and each Buyer agree that from time to time after the Closing they will execute and deliver, and will cause their respective Affiliates to execute and deliver, such further instruments, and take, and cause their respective Affiliates to take, such other actions as may be reasonably necessary to carry out the purposes and intent of this Agreement.
7.9 Support Obligations. Each Seller and each Buyer agree to take any and all actions reasonably necessary to transfer and assign to Buyers any Support Obligations issued by Sellers or any Affiliate of Sellers (excluding those issued by any Acquired Company or any Subsidiary) and outstanding in connection with or for the benefit of the Acquired Companies or the Subsidiaries or their respective businesses that are assignable or transferable. Each Buyer agrees to use its Commercially Reasonable Efforts (and Sellers and their Affiliates will cooperate with Buyers) to cause Sellers and their Affiliates (other than the Group) to be absolutely and unconditionally relieved on or prior to the Closing Date of all Liabilities arising out of or resulting from any such Support Obligations, and each Buyer shall indemnify Sellers and their Affiliates (other than the Group) against any Losses with respect to such Liabilities. To the extent that Sellers and their Affiliates are not absolutely and unconditionally relieved of all such Liabilities on or prior to the Closing Date, each Buyer agrees to (i) use its Commercially Reasonable Efforts to absolutely and unconditionally relieve Sellers and their Affiliates of all such Liabilities as promptly as reasonably practicable after the Closing Date, (ii) indemnify Sellers and their Affiliates (other than the Group) against all Losses with respect to any such Liabilities. Any costs associated with any termination of such Support Obligations shall be borne by Sellers and any costs associated with the implementation of new or substituted arrangements of Buyers shall be borne by Buyers.
7.10 Minimum Cash; Restricted Cash. Sellers shall, and shall cause their Affiliates to, ensure that, as of the Closing, the Acquired Companies and the Subsidiaries shall hold (a) an amount of Proportionally Consolidated Group Cash equal to at least (i) $49,900,000 minus (ii) the difference of (which can be a negative number) (A) the refinancing costs incurred by Seller 1 in connection with the issuance of the Notes issued on November 9, 2017 and (B) $22,000,000, minus (iii) the financing costs incurred by Seller 1 in connection with any issuance of Additional Notes (as defined in the Note Indenture) and any interest paid by Seller 1 on any Additional Notes, in each case, that may occur between the date hereof and the Closing Date, minus (iv) the costs incurred by the Acquired Companies and Subsidiaries to refinance the Debt issued under the instrument marked with an “x” on Schedule 4.4(b) (without duplication of any unamortized transaction costs that have been excluded from such Debt in the Proportionally Consolidated Group Debt), in each case of clause (ii)(B), (iii) and (iv) including underwriter discounts and commissions and fees and expenses of legal counsel (including underwriting counsel to the extent payable by Seller 1) and audit and accounting services (the “Minimum Cash”); and (b) an amount of Restricted Cash equal to the balance of Restricted Cash held by the Acquired Companies and the Subsidiaries, on a proportionately consolidated basis, as of June 30, 2017, subject to any reduction in such balance that occurs as a result of the operation of the Acquired Companies or the Subsidiaries in the ordinary course of business through the Closing. For the avoidance of doubt, the amount of Restricted Cash required to be held by the Acquired Companies and the Subsidiaries pursuant to this Section 7.10 shall not be subject to reduction as a result of or in connection with any Debt financing or refinancing or repayment of any Debt of any Acquired Company or Subsidiary. For the avoidance of doubt, nothing in this Section 7.10 shall prohibit Sellers from causing the Acquired Companies and Subsidiaries to dividend or distribute any amounts in excess of the Minimum Cash and Restricted Cash in accordance with this Section 7.10.
7.11 Interim Operating Covenants Concerning Anti-Corruption Laws.
(a) Each Compliance Group Member shall, and shall use its Commercially Reasonable Efforts to cause its Compliance Group Employees and Third Parties to, comply with all Anti-Corruption Laws. The Acquired Companies and their respective Affiliates shall maintain in effect and enforce policies and procedures designed to ensure such compliance.
(b) Each Compliance Group Member shall, and shall use its Commercially Reasonable Efforts to cause its Compliance Group Employees and Third Parties to, not directly or indirectly, lend, contribute or otherwise make available funds (i) to any Person to finance or facilitate any activity with a Restricted Party or for any activity relating to any Restricted Country that would breach any Sanctions or other Anti-Corruption Laws, or (ii) for any activity or transaction that would breach any Anti-Corruption Laws. The Acquired Companies and their respective Affiliates shall maintain in effect and enforce policies and procedures designed to ensure such compliance.
(c) The operations of the Acquired Companies and the Subsidiaries shall not be funded out of proceeds derived, directly or indirectly, from any business activities with a Restricted Party or in a Restricted Country.
7.12 Casualty and Condemnation.
(a) If any of the material physical assets or properties of the Acquired Companies and Subsidiaries (taken as a whole) that are primarily used and necessary for the conduct of the businesses of the Acquired Companies are damaged or destroyed by casualty loss after the date hereof and prior to the Closing, and (a) the cost of restoring such damaged or destroyed material physical assets or properties to a condition reasonably comparable to their prior condition and (b) the amount of any lost profits, in each case, only to the extent such costs and lost profits are reasonably expected to accrue after the Closing as a result of such damage or destruction to such material physical assets or properties (net of and after giving effect to any insurance coverage available to the Acquired Companies and Subsidiaries for such restoration and lost profits and any Tax benefits and Tax costs related thereto) (such costs and lost profits with respect to any such material physical assets or properties, the “Restoration Cost”) is greater than a dollar amount equal to two percent (2%) of Base Purchase Price, Sellers shall within forty-five (45) days after the date of such casualty loss notify the Buyers in writing (the “Casualty Loss Notice”) and Buyers and Sellers shall negotiate in good faith a reduction of the amount of the Base Purchase Price by the estimated Restoration Cost. If Buyers and Sellers do not agree on a reduction to the Base Purchase Price within five (5) Business Days of notification to Buyers, then Buyers may elect, with prior written notification to Sellers, to reduce the Base Purchase Price by the Restoration Cost estimated by Buyers in good faith and after applying Good Utility Practices (including consideration of an external qualified firm’s estimate of the Restoration Cost), provided that such estimated Restoration Cost shall be no higher than the Restoration Cost then estimated by Buyers in its negotiations with Sellers (the “Casualty Initial Purchase Price Reduction”). If the Restoration Cost estimated by Buyers pursuant to the previous sentence or as otherwise set forth in the Casualty Loss Notice is in excess of a dollar amount equal to ten percent (10%) of Base Purchase Price, Buyers or Sellers may elect to terminate this Agreement. If the estimated Restoration Cost is a dollar amount equal to two percent (2%) of Base Purchase Price or less, (i) Sellers shall not be obligated to repair or replace the damaged or destroyed material physical asset or property, (ii) neither Buyers nor Sellers shall have the right or option to terminate this Agreement, and (iii) there shall be no reduction in the amount of the Purchase Price. In the event that there is a reduction to the Base Purchase Price pursuant to this Section 7.12, prior to Closing, Sellers shall, and shall cause their Affiliates to, use Commercially Reasonable Efforts to collect amounts due (if any) under available insurance policies or programs in respect of any such casualty loss and shall cause any such insurance proceeds to be contributed or assigned to the applicable Acquired Company that has suffered such casualty loss without any adjustment to the Proportionally Consolidated Group Net Working Capital.
(b) If any of the material physical assets or properties of the Acquired Companies (taken as a whole) that are primarily used and necessary for the conduct of the business of the Acquired Companies are taken by condemnation after the date hereof and prior to the Closing and such material physical assets or properties have the sum of (x) a condemnation value and (y) to the extent not included in preceding clause (x), the amount of any lost profits reasonably expected to accrue after the Closing as a result of such condemnation of such material physical assets or properties (net of and after giving effect to any condemnation award and any Tax benefits and Tax costs related thereto) (such sum with respect to any such material physical assets or properties of the Acquired Companies (taken as a whole) that are primarily used and necessary for the conduct of the businesses of the Acquired Companies, the “Condemnation Value”) greater than a dollar amount equal to two percent (2%) of Base Purchase Price, Sellers shall within forty-five (45) days after the date of such condemnation loss notify the Buyers in writing (the “Condemnation Loss Notice”) and Buyers and Sellers shall negotiate in good faith a reduction of the amount of the Base Purchase Price by the estimated Condemnation Value. If Buyers and Sellers do not agree on a reduction to the Base Purchase Price within five (5) Business Days of notification to Buyers, then Sellers may elect, with prior written notification to Buyers, to reduce the Base Purchase Price by the Condemnation Value estimated by Sellers in good faith and applying Good Utility Practices (including consideration of an external qualified firm’s estimate of the Condemnation Value), provided that such estimated Condemnation Value shall be no lower than the Condemnation Value then estimated by Sellers in its negotiations with Buyers (the “Condemnation Initial Purchase Price Reduction”). If the Condemnation Value estimated by Sellers pursuant to the previous sentence or as otherwise set forth in the Condemnation Loss Notice is in excess of a dollar amount equal to ten percent (10%) of Purchase Price, Buyers or Sellers may elect to terminate this Agreement.
(c) In the event of a Casualty Initial Purchase Price Reduction or a Condemnation Initial Purchase Price Reduction, Buyers shall, at Closing, pay the amount of any Casualty Initial Purchase Price Reduction and Condemnation Initial Purchase Price Reduction (if any) (together, the “Casualty and Condemnation Escrow Amount”) into a casualty and condemnation escrow account maintained by the Escrow Agent in accordance with the Escrow Agreement (the “Casualty and Condemnation Escrow Account”). Within thirty (30) days following the Closing Date, Buyers and Sellers jointly shall engage the Arbitration Firm to finally determine the Restoration Cost and/or Condemnation Value, as applicable. Buyers and Sellers shall, and Buyers shall cause the Acquired Companies and Subsidiaries to, provide the Arbitration Firm with all information and documentation reasonably requested by the Arbitration Firm in order for it to determine the Restoration Cost and/or Condemnation Value. As soon as practicable thereafter, Buyers and Sellers shall cause the Arbitration Firm to determine the Restoration Cost and/or the Condemnation Value, as applicable. Buyers, on the one hand, and Sellers, on the other hand, shall each be responsible for fifty percent (50%) of the fees and expenses of the Arbitration Firm. All determinations made by the Arbitration Firm will be final, conclusive and binding on the Parties. Except in the instance of fraud, the Parties further agree not to pursue any legal claim or action against the Arbitration Firm as a result of its determinations pursuant to this Section 7.12.
(d) In the event that:
(i) the Casualty Difference is a negative number, then Buyer 1 and Seller 1 shall cause the Escrow Agent to pay the Casualty Difference plus the Escrow Accrued Interest to Seller 1;
(ii) the Casualty Difference is a positive number, then Seller 1 shall pay the Casualty Difference to Buyer 1;
(iii) the Condemnation Difference is a negative number, then Buyer 1 and Seller 1 shall cause the Escrow Agent to pay the Condemnation Difference to Seller 1; and
(iv) the Condemnation Difference is a positive number, then Seller 1 shall pay the Condemnation Difference plus the Escrow Accrued Interest to Buyer 1;
provided, however, that if the Tax Basis Certificate has not been obtained at least five (5) Business Days prior to the date any such payment to Seller 1 pursuant to this Section 7.12(c) is due (such that it is valid), Buyer 1 and Seller 1 shall cause the Escrow Agent to pay such amounts into the Basis Certificate Escrow Account.
(e) For the purposes of this Section 7.12:
(i) “Casualty Difference” which may be a positive or negative number means the difference of (A) the Restoration Cost as finally determined pursuant to Section 7.12(c) minus (B) the Casualty Initial Purchase Price Reduction; and
(ii) “Condemnation Difference” which may be a positive or negative number means the difference of (A) the Condemnation Value as finally determined pursuant to Section 7.12(c) minus (B) the Condemnation Initial Purchase Price Reduction.
7.13 Kanan Project.
(a) If (and only if) Kanan Escrow Trigger Events (as defined below) occur and continue to exist on the Closing Date, then, on the Closing Date, Buyers will withhold from the Initial Purchase Price (as part of the Closing Date Escrow Amount, if any, as provided in Section 2.2(a)) and transfer to the Kanan Project escrow account maintained by the Escrow Agent in accordance with the Escrow Agreement (the “Kanan Project Escrow Account”) the following amounts: (i) $10 million if none of the DISCOs has issued a notice to terminate a PPA; or (ii) $20 million if any one or more of the DISCOs has issued a notice to terminate a PPA that has not been Cured on or before the Closing Date; or (iii) $0 in any other case, provided however, that if the Closing Date is after the Target Project Completion Date, then, notwithstanding whether the Kanan Escrow Trigger Events occur, on the Closing Date, Buyers shall withhold from the Initial Purchase Price (as part of the Closing Date Escrow Amount, if any, as provided in Section 2.2(a)) and transfer to the Kanan Project Escrow Account (A) $20 million if any one or more of the DISCOs has issued a notice to terminate a PPA on or prior to the Target Project Completion Date, which has not been Cured on or before the Closing Date, or (B) $0 in any other case.
(b) Any amount held in the Kanan Project Escrow Account will be released on or after the Closing Date as follows:
(i) to Seller 1 promptly after the first to occur of (A) the date a Force Majeure Claim Resolution has been obtained; (B) the date the Kanan Project has reached COD; or (C) the Target Project Completion Date; provided that, in each case, if any one or more of the DISCOs has issued a notice to terminate a PPA which has not been Cured as of the date such amounts would otherwise be released under clause (A), (B) or (C) such amounts will not be released at such time and instead will be retained in the Kanan Project Escrow Account until such time as, and will be released to Seller 1 promptly following, the date such PPA termination has been Cured if and only if that date is prior to the Cure Date; or
(ii) to Buyer 1 promptly following the Cure Date, to the extent any funds are not released to the Seller 1 pursuant to Section 7.13(b)(i).
(c) Seller 1 agrees to cause Kanan to use Commercially Reasonable Efforts to reach COD by the Target Project Completion Date or as soon as reasonably practicable thereafter, including by making appropriate capital expenditures in accordance with Good Utility Practices. Until the Closing Date, any Kanan Insurance Proceeds shall be used only to make expenditures on the Kanan Project (which, for the avoidance of doubt, includes payments pending from Kanan to PQP for up to the amount of La Esperanza Barge Price) or otherwise to reach COD. Buyer 3 agrees to pay Seller 1, at Closing, ninety-five percent (95%) of any balance that remains unpaid by Kanan to PQP of the La Esperanza Barge Price at Closing.
(d) Seller 1 agrees to cause Kanan to grant Buyers and their representatives, upon reasonable notice and during normal business hours, at Buyers’ sole expense, reasonable access to the Kanan Project, accompanied by a representative of Kanan, and to make the local project director and local management available to discuss the affairs and developments of the Kanan Project with Buyers and their representatives in order for Buyers to assess the progress towards COD of the Kanan Project. The rights granted to Buyers and their representatives in this Section 7.13(d) are observer rights only, and Buyers and their representatives shall not be permitted to give any order or instruction in respect of or exert any control over the Kanan Project. Seller 1 agrees that it shall discuss with Buyers in good faith any concerns or issues Buyers raise in connection with the development of the Kanan Project.
(e) If, following the Closing, Kanan or any of its Affiliates recovers, in cash, any penalties paid by Kanan in connection with Kanan Casualty Event (such recovered amount, the “Kanan Recovered Amount”), Buyer 3 shall pay or cause to be paid, in cash, to Seller 1 as promptly as practicable following the later of (i) COD or (ii) five (5) Business Days after receipt of such Kanan Recovered Amount an amount equal to fifty percent (50%) of the Kanan Recovered Amount actually received by Kanan, it being understood that the remaining fifty percent (50%) of the Kanan Recovered Amount shall be retained by Kanan or its Affiliates; provided, however, that to the extent that (i) the Kanan Insurance Proceeds and (ii) fifty percent (50%) of the Kanan Recovered Amount retained by Kanan are together not sufficient to fully cover the construction costs of the Kanan Project, then Kanan (or any of its Affiliates) shall be entitled to retain such portion of the Kanan Recovered Amount that would otherwise be paid to Seller 1 pursuant to this Section 7.13(e) necessary in order to cover such construction costs.
(f) Between the date of this Agreement and the Closing Date, the Parties shall discuss, in good faith, following review by Buyers, the sharing of any VAT that may be incurred in respect of the sale of the La Esperanza Barge by PQP to Kanan.
(g) For the purposes of this Section 7.13:
(i) “ASEP” means the National Authority of Public Services (Autoridad Nacional de los Servicios Públicos) of the country;
(ii) “CND” means the National Dispatch Center of Empresa de Transmision Electrica S.A. (Centro Nacional de Despacho de la Empresa de Transmisión Eléctrica);
(iii) “COD” means:
(A) all work required to be completed for the Kanan Project to operate utilizing the La Esperanza Barge at at least 92 megawatts as a replacement for the Estrella del Norte Barge and the Santa Inés Barge has been performed in accordance with Good Utility Practice, and such that the technical specifications of the Kanan Project are in compliance in all material respects with applicable Law (including Environmental Law) and the Power Purchase Agreements and Kanan’s other contractual obligations;
(B) the Kanan Project has obtained all Material Permits necessary for the importation, restoration and operation of the La Esperanza Barge at at least 92 megawatts as a replacement for the Estrella del Norte Barge and the Santa Inés Barge, in each case in accordance with applicable Law (including Environmental Law) and the Power Purchase Agreements and Kanan’s other contractual obligations; and
(C) the Kanan Project is operating and capable of delivering energy to the Panamanian National Interconnected System at a capacity of at least 92 megawatts (as certified by CND);
(iv) “Cure Date” means the date which is the two months anniversary of the Target Project Completion Date;
(v) “Cured” means that Kanan complies with the covenant or agreement under the relevant PPA, the breach of which caused the notice of termination, on or prior to the Cure Date. Such compliance may be evidenced by the authorization to enter into commercial operation issued by CND;
(vi) “DISCO” means EDECHI, EDEMET, or ENSA;
(vii) “EDECHI” means Empresa de Distribución Eléctrica Chiriquí, S.A., a sociedad anonima organized and existing under the laws of the Republic of Panama;
(viii) “EDECHI PPA” means the contrato de suministro no. 31-14, dated January 22, 2015, between EDECHI and Kanan, as amended by amendments dated as of April 7, 2015, September 4, 2015, November 18, 2015 and April 14, 2016;
(ix) “EDEMET” means Empresa de Distribución Eléctrica Metro - Oeste, S.A., a sociedad anonima organized and existing under the laws of the Republic of Panama;
(x) “EDEMET PPA” means the contrato de suministro no. 27-14, dated January 22, 2015, between EDEMET and Kanan, as amended by amendments dated as of April 7, 2015, September 4, 2015, November 18, 2015 and April 14, 2016;
(xi) “ENSA” means Elektra Noreste, S.A., a sociedad anonima organized and existing under the laws of the Republic of Panama;
(xii) “ENSA PPA” means the contrato de suministro dme-10-14, dated January 19, 2015, between ENSA and Kanan, as amended by amendments dated as of January 19, 2015, August 25, 2015 and November 26, 2015;
(xiii) “Estrella del Norte Barge” means the electrical power generation barge named “Estrella del Norte” owned as of the date hereof by Kanan and registered in Panama under registration number 47981-PEXT;
(xiv) “Force Majeure Claim Resolution” means a resolution or decision taken or adopted by ASEP by which it affirmatively accepts that the unavailability of capacity in the system to back up the loss of capacity caused by the Kanan Casualty Event constitutes a force majeure excusing Kanan´s breach of its capacity obligations under the Power Purchase Agreements and any related termination event including the application of all penalties related to such failure to provide capacity;
(xv) “Kanan” means Kanan Overseas I Inc., a corporation (Sociedad anonima) organized under the laws of the Republic of Panama;
(xvi) “Kanan Casualty Event” means the fire that occurred at Kanan resulting in the Santa Inés Barge and the Estrella del Norte Barge being placed off-line;
(xvii) “Kanan Escrow Trigger Events” means the occurrence of each of the following circumstances, events or conditions: either (A) a Force Majeure Claim Resolution has not been obtained on or prior to the Closing Date, or (B) the Kanan Project has not reached COD on or prior to the Closing Date;
(xviii) “Kanan Insurance Proceeds” means any casualty loss, business interruption and loss of profits insurance proceeds received in cash (net of any costs of recoveries, deductions, or retention amounts) by Kanan as a result of and in connection with the Kanan Casualty Event;
(xix) “Kanan Project” means relocation, installment and commencement of commercial operations of the La Esperanza Barge in connection with the Kanan Casualty Event at Kanan;
(xx) “La Esperanza Barge” means the electrical power generation barge named “La Esperanza” owned as of the date hereof by PQP;
(xxi) “La Esperanza Barge Price” means $63,126,000 million;
(xxii) “National Interconnected System” means the National Interconnected System (Sistema Interconectado Nacional) of the Republic of Panama;
(xxiii) “Power Purchase Agreement” or “PPA” means each of EDECHI PPA, EDEMET PPA and ENSA PPA (as applicable);
(xxiv) “PQP means Puerto Quetzal Power LLC, a limited liability company organized under the laws of the State of Delaware and registered in Guatemala under registration number 160, folio 14, book 2 of Foreign Companies;
(xxv) “Santa Inés Barge” the electrical power generation barge named “Santa Ines Barge” owned as of the date hereof by Kanan and registered in Panama under registration number 29177-PEXT-2; and
(xxvi) “Target Project Completion Date” means February 10, 2018, provided that if the La Esperanza Barge is not located in the Port of Colon, Republic of Panama, by December 15, 2017, then for each calendar day after December 15, 2017, that the La Esperanza Barge is not located in the Port of Colon, Republic of Panama, the Target Project Completion Date shall be extended by one (1) calendar day. For example, if the La Esperanza Barge first arrives at the Port of Colon, Republic of Panama, on December 20, 2017, then the Target Project Completion Date would be February 15, 2018.
7.14 Agua Clara Debt.
(a) From the date hereof until the earlier of the Closing Date or the date on which this Agreement is earlier terminated, Seller 1 shall, and shall cause the Acquired Companies and the Subsidiaries to, permit Buyers, their Affiliates and their and their Affiliates’ agents and representatives, to participate in financing discussions related to Agua Clara Debt, including providing sufficient notice to ensure that such parties may review and comment on financing documents, participate in negotiating such documents, and have access to all relevant information.
(b) In connection with material actions regarding the Agua Clara Debt, Seller 1 agrees that it shall, and shall cause the Acquired Companies and Subsidiaries to, not take any such actions without Buyers’ prior written consent (such consent not to be unreasonably withheld).
7.15 Intercompany and Intragroup Balances. Prior to the Closing:
(a) Sellers shall, and shall cause the Acquired Companies and Subsidiaries and their Affiliates to, settle all Intercompany Balances, including those set forth on Schedule 7.15; and
(b) Sellers shall not create any Liability between any of the Acquired Companies or Subsidiaries, unless Sellers hold the same proportion of Equity Interests in both the obligor and obligee Acquired Company or Subsidiary.
7.16 Other Transaction Agreements. As soon as reasonably practicable following the date hereof, Buyers and Sellers shall confer and negotiate in good faith to reach agreement on a definitive Transition Services Agreement and CPAA Agreement, that is consistent with and reflects the form of Transition Services Agreement set forth in Exhibit F and the form of CPAA Agreement set forth in Exhibit E, respectively. The definitive Transition Services Agreement and CPAA Agreement entered into at the Closing shall incorporate the terms as mutually agreed by Buyers and Sellers in accordance with this Section 7.16.
CONDITIONS TO CLOSING
8.1 Conditions to Obligations of the Sellers. The obligations of the Sellers to consummate the transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following conditions:
(a) Representations and Warranties. (i) the representations and warranties of Buyers set forth in Sections 6.1 (Organization), 6.2 (Authority, Validity and Effect), 6.6 (Solvency) and 6.9 (No Brokers) (the “Buyer Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date) and (ii) the representations and warranties of Buyers (other than the Buyer Fundamental Representations) set forth in ARTICLE VI shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (ii), where the failure to be true and correct would not in the aggregate have a Material Adverse Effect on the Buyers.
(b) Performance of Obligations. Each Buyer must have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing.
(c) Consents. All Consents set forth on Schedule 6.3(b) and marked with an asterisk (i) shall have been obtained in a form reasonably satisfactory to Sellers, (ii) shall be in full force and effect and (iii) shall have been delivered to Sellers.
(d) No Injunction. No Order shall have been entered which restrains, enjoins or otherwise prohibits or makes illegal the consummation of any of the transactions contemplated by this Agreement and no Action shall have been instituted by any Governmental Authority of competent jurisdiction seeking to restrain, enjoin or otherwise prohibit or make illegal the consummation of any of the transactions contemplated by this Agreement.
(e) Closing Deliveries. Buyers shall have delivered to Sellers all of the closing deliveries required to be delivered by them pursuant to Section 3.3.
(f) Withholding Taxes. Buyers shall not have delivered a Withholding Tax Statement that discloses more than $60 million of Taxes to be withheld at Closing.
8.2 Conditions to Obligations of Buyers. The obligations of Buyers to consummate the transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following conditions:
(a) Representations and Warranties. (i) the representations and warranties regarding the Acquired Companies and the Subsidiaries set forth in Sections 4.1(a) (Organization and Standing; Authority), 4.2 (Capitalization), 4.3 (Subsidiaries), 4.22 (No Brokers) and Sellers set forth in Sections 5.1 (Organization), 5.2 (Authority; Validity and Effect), 5.4 (Title), and 5.6 (No Brokers) (the “Seller Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date) and (ii) the representations and warranties regarding the Acquired Companies and the Subsidiaries set forth in ARTICLE IV and Sellers set forth in ARTICLE V (in each case, other than the Seller Fundamental Representations) shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (ii), where the failure to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect on the Group.
TERMINATION OF AGREEMENT
SURVIVAL; INDEMNIFICATION
TAX MATTERS
MISCELLANEOUS AND GENERAL
SELLER 1: | ||
INKIA ENERGY LTD. | ||
By: | ||
Name: Javier Garcia | ||
Title: Chief Executive Officer | ||
SELLER2: | ||
IC POWER DISTRIBUTION HOLDINGS PTE. LTD. | ||
By: | ||
Name: Javier Garcia | ||
Title: Authorized Signatory |
BUYER 1: | ||
NAUTILUS INKIA HOLDINGS LLC | ||
By: | ||
Name: Thomas Lefebvre | ||
Title: Authorized Signatory | ||
BUYER 2: | ||
NAUTILUS DISTRIBUTION HOLDINGS LLC | ||
By: | ||
Name: Thomas Lefebvre | ||
Title: Authorized Signatory | ||
BUYER 3: | ||
NAUTILUS ISTHMUS HOLDINGS LLC | ||
By: | ||
Name: Thomas Lefebvre | ||
Title: Authorized Signatory |
Defined term | Section |
6-Month Consolidation File | 4.5(c) |
9-Month Consolidation File | 4.5(c) |
9-Month Financial Statements | 4.5(a) |
Adjustment Dispute Notice | 2.3(c)(i) |
Agreement | Preamble |
ASEP | 7.13(g)(i) |
Audited Financial Statements | 4.5(a) |
Balance Sheet | 4.5(a) |
Balance Sheet Date | 4.5(a) |
Base Purchase Price | 2.2(a)(i) |
Basket Amount | 10.5(a) |
Benefit Plan | 4.13(e) |
Buyer | Preamble |
Buyer 1 | Preamble |
Buyer 2 | Preamble |
Buyer 3 | Preamble |
Buyer Claim | 10.6(b) |
Buyer Claims Notice | 10.6(b) |
Buyer Fundamental Representations | 8.1(a) |
Buyer Guarantee | Recitals |
Buyer Indemnitees | 10.3 |
Buyer Prepared Tax Returns | 11.2(b) |
Buyers | Preamble |
Casualty and Condemnation Escrow Account | 7.12(c) |
Casualty and Condemnation Escrow Amount | 7.12(c) |
Casualty Difference | 7.12(e)(i) |
Casualty Initial Purchase Price Reduction | 7.12(a) |
Casualty Loss Notice | 7.12(a) |
Claim | 10.6(b) |
Closing | 3.1 |
Closing Agua Clara Contribution Amount | 2.3(b)(v) |
Closing Agua Clara Debt | 2.3(b)(iv) |
Closing Date | 3.1 |
Closing Excess Cash Adjustment | 2.3(b)(iii) |
Closing Proportionally Consolidated Group Debt | 2.3(b)(ii) |
Closing Proportionally Consolidated Group Working Capital | 2.3(b)(i) |
Closing Statement | 2.3(b) |
CND | 7.13(g)(ii) |
COBRA | 4.13(g) |
COD | 7.13(g)(iii) |
Condemnation Difference | 7.12(e)(ii) |
Condemnation Initial Purchase Price Reduction | 7.12(b) |
Condemnation Loss Notice | 7.12(b) |
Condemnation Value | 7.12(b) |
Contracting Parties | 12.13 |
Cure Date | 7.13(g)(iv) |
Cured | 7.13(g)(v) |
DISCO | 7.13(g)(vi) |
EDECHI | 7.13(g)(vii) |
EDECHI PPA | 7.13(g)(viii) |
EDEMET | 7.13(g)(ix) |
EDEMET PPA | 7.13(g)(x) |
Effective Time | 3.1 |
ENSA | 7.13(g)(xi) |
ENSA PPA | 7.13(g)(xii) |
Equity Commitment Letter | 6.5 |
Estimated Agua Clara Contribution Amount | 2.3(a)(v) |
Estimated Agua Clara Debt | 2.3(a)(iv) |
Estimated Closing Proportionally Consolidated Group Debt | 2.3(a)(ii) |
Estimated Closing Proportionally Consolidated Group Working Capital | 2.3(a)(i) |
Estimated Excess Cash Adjustment | 2.3(a)(iii) |
Estimated Statement | 2.3(a) |
Estrella del Norte Barge | 7.13(g)(xiii) |
Extended Termination Date | 9.1(b) |
Finally Determined | XI |
Financial Statement Assistance | 7.2(c) |
Financing Source | 7.7(a) |
Force Majeure Claim Resolution | 7.13(g)(xiv) |
Future Development Permits | 4.12(b) |
General Cap Amount | 10.5(d) |
Impuesto a las Transacciones Financieras | 10.3(b) |
Indemnifying Party | 10.6(c) |
Initial Purchase Price | 2.2(a)(vi) |
Insolvency Proceedings | 4.6(a) |
Interim Financial Statements | 4.5(a) |
Kanan | 7.13(g)(xv) |
Kanan Casualty Event | 7.13(g)(xvi) |
Kanan Insurance Proceeds | 7.13(g)(xxi) |
Kanan Project | 7.13(g)(xviii) |
Kanan Project Escrow Account | 7.13(a) |
Kanan Recovered Amount | 7.13(e) |
La Esperanza Barge | 7.13(g)(xx) |
Leased Real Property | 4.9 |
Material Contracts | 4.14(a) |
Minimum Cash | 0 |
National Interconnected System | 7.13(g)(xxi) |
Nonparty Affiliates | 12.13 |
Note Indenture | 3.2(h) |
Notice | 10.6(b) |
Owned Real Property | 4.9 |
Parties | Preamble |
Party | Preamble |
Power Purchase Agreement | 7.13(g)(xxiii) |
PPA | 7.13(g)(xxiii) |
Preliminary Statement | 2.3(a) |
Reference Group | 4.14(a)(xvi) |
Responsible Party | 10.6(c) |
Restoration Cost | 7.12(a) |
Santa Inés Barge | 7.13(g)(xxv) |
Schedule Update | 7.3 |
Securities Act | 7.7(c) |
Seller | Preamble |
Seller 1 | Preamble |
Seller 2 | Preamble |
Seller Claim | 10.6(a) |
Seller Claims Notice | 10.6(a) |
Seller Economic Liability | 11.8 |
Seller Financial Statements | 4.5(a) |
Seller Fundamental Representations | 8.2(a) |
Seller Indemnitees | 10.2 |
Seller Prepared Tax Returns | 11.2(a) |
Seller Tax Matter | 11.6 |
Sellers | Preamble |
Sellers’ Counsels | 12.14 |
Subsidiary Interests | 4.3(a) |
Target Project Completion Date | 7.14(b) |
Tax Basis Certificate | 3.2(i) |
Tax Claim | 11.5(a) |
Tax Refund | 11.7 |
Termination Date | 9.1(b) |
Transaction Dispute | 12.9(a) |
Trust Agreements | 3.2(l) |
Withholding Tax Escrow Account | 2.4(b)(i) |
Withholding Tax Escrow Amount | 2.4(b)(i) |
Withholding Tax Statement | 2.4 |
1. | Amendment to Purchase Agreement. |
(a) | Section 2.2(a) of the Purchase Agreement shall be deleted and replaced in its entirety with the following: |
(i) | $1,177,000,000 (the “Base Purchase Price”); |
(ii) | plus any Estimated Working Capital Adjustment; |
(iii) | minus any Estimated Debt Adjustment; |
(iv) | minus the Closing Date Escrow Amount (if any); |
(v) | plus the Estimated Excess Cash Adjustment; |
(vi) | plus the Estimated Agua Clara Contribution Amount; |
(vii) | minus $150,000,000 (being principal amount of Additional Notes issued under the Note Indenture); and |
(viii) | plus $8,500,000, |
(b) | The word “and” shall be deleted from Section 2.3(b)(v) and the following shall be added as a new Section 2.3(b)(vi): |
(c) | The following shall be added as a new Section 2.3(e)(iv) and (v). |
(d) | The following shall be added as new Sections 3.2(s) and (t). |
(e) | The following shall be added as a new Section 3.3(k). |
(f) | The phrase “Except for the Kanan Intercompany Loan” shall be added immediately prior to the words (i) “Sellers shall” in Section 7.15(a) and (ii) “The Intercompany Balances” in Section 8.2(h). |
(g) | References to “Section 9.1(f)” in Section 7.3 of the Purchase Agreement shall be deleted and replaced with “Section 9.1(e).” |
(h) | The following shall be added as a new Section 10.3(c). |
(i) | The following definitions shall be added to Annex A: |
(j) | The definition of “Purchase Price” in Annex I of the Purchase Agreement shall be deleted and be replaced with the following: |
(k) | The following shall be added as a new Section 7.17. |
(l) | Schedule 1.1(a) of the Purchase Agreement shall be deleted and replaced in its entirety with Schedule 1.1(a) attached hereto. |
(m) | Schedule 2.3(a) of the Purchase Agreement shall be amended such that in paragraph 2 under the heading “Proportionally Consolidated Group Net Working Capital” in the definition of “Excluded Liabilities” there shall be added new clauses j. and k. as follows: |
(n) | Schedule 2.3(a) of the Purchase Agreement shall be amended such that in paragraph 1 under the heading “Proportionally Consolidated Group Debt” the phrase “and the Kanan Intercompany Loan” shall be inserted immediately following “and Debt of Inkia Energy Ltd.”. |
(o) | Schedule 2.3(a) of the Purchase Agreement shall be amended such all references to “Closing Accounting Principles” shall be replaced by the phrase “Closing Accounting Policies”. |
(p) | New Schedule 1.1(f) shall be added to the Purchase Agreement and shall include the information contained in Schedule 1.1(f) hereto. |
(q) | New Schedule 1.1(g) shall be added to the Purchase Agreement and shall include the information contained in Schedule 1.1(g) hereto. |
2. | Closing Arrangements. |
(a) | Notwithstanding any contrary provision in Section 3.1 of the Purchase Agreement: |
(i) | On December 22, 2017, Seller 1 shall deliver the Estimated Statement. |
(ii) | On December 26, 2017, Buyer 1 shall make an advance payment on the Initial Purchase Price of an amount equal to $175,000,000 (the “Advanced Payment”). The Advanced Payment shall be made into a deferred payment account maintained by the Escrow Agent and upon receipt of the Advanced Payment by the Escrow Agent, such funds shall be deemed to have been received by Seller 1, effective as of the Closing if it occurs on December 28, 2017, pursuant to Section 2(a)(v) below. |
(iii) | On December 26, 2017, the Escrow Agent shall pay the Advanced Payment to Buyer 1 pursuant to instructions delivered by Buyer 1 in accordance with the Escrow Agreement. In the event that the Closing occurs on December 28, 2017, pursuant to Section 2(a)(v) below, the payment of the Advanced Payment to Buyer 1 pursuant to this Section 2(a)(iii) shall be deemed to be the grant of Loan (as defined in the Deferred Payment Agreement) effective as of the Closing Date pursuant to the Deferred Payment Agreement. In the event that the Closing does not occur on December 28, 2017, pursuant to Section 2(a)(v) below, the payment of the Advanced Payment to Buyer 1 pursuant to this Section 2(a)(iii) shall be deemed a repayment of the Advanced Payment by Seller 1 to Buyer 1. |
(iv) | On December 28, 2017, Buyer 1 shall pay to Seller 1, in accordance with Section 3.3(a) of the Purchase Agreement, an amount equal to (i) the Initial Purchase Price minus (ii) the Advanced Payment. |
(v) | Closing (including the purchase by, and legal transfer and conveyance to, Buyer 1 of the Acquired Interests) shall occur on December 28, 2017 if all of the conditions set forth in ARTICLE VIII of the Purchase Agreement have been satisfied or waived (other than any that are to be satisfied and are satisfied at the Closing) on that date; that date will be the “Closing Date” for all purposes of the Purchase Agreement and this Amendment Agreement, except that the Transaction shall be deemed effective once it can no longer be unwound in accordance with clause (d) below |
(vi) | All other transactions contemplated in Sections 3.2 and 3.3 of the Purchase Agreement shall take place on the Closing Date (as amended hereby) as contemplated therein. |
(b) | If Closing occurs on the Closing Date, the conditions set forth in ARTICLE VIII shall not be subject to any further satisfaction or waiver between the Closing Date and the Effective Time and shall be of no other force or effect following completion of the transactions set forth in Sections 3.2 and 3.3 of the Purchase Agreement as provided therein. |
(c) | Buyers shall procure that between the Closing Date and the Effective Time: |
(i) | (A) no dividend, return of capital (whether by reduction of capital, redemption or purchase of shares or otherwise) or other distribution of profits, reserves or assets shall be declared, paid or made by any Acquired Company or Subsidiary and (B) no loans, advances or similar payments shall be made by any Acquired Company or Subsidiary (other than to another Acquired Company or Subsidiary in the ordinary course of business consistent with past practice); |
(ii) | no securities of any Acquired Company or Subsidiary (or any interest therein) shall be created, issued or allotted; |
(iii) | Except as otherwise permitted under Section 2(c)(iv), (A) no Debt shall be created, incurred or assumed, other than short-term borrowings under existing lines of credit, or lines of credit renewed or extended consistent with past practice on substantially the same terms as those existing as of the date hereof, utilized in the ordinary course of business and Debt between the Acquired Companies and the Subsidiaries, (B) no Support Obligations shall be incurred or entered into, except in the ordinary course of business consistent with past practice and to replace existing Support Obligations (or other Debt), without any increase in the aggregate amount of Support Obligations (or other Debt) incurred and (C) no Investment shall be made in any Person (other than the Acquired Companies and the Subsidiaries); |
(iv) | no transaction shall be entered into between any Acquired Company or Subsidiary, on the one hand, and Buyers or their Affiliates (excluding the Acquired Companies and Subsidiaries), on the other hand, except for any that may be terminated immediately at will by any Acquired Company or any Subsidiary, without penalty, premium or other Liability of any kind if the Effective Time does not occur and that does not otherwise change, or have any effect on, the Proportionally Consolidated Group Net Working Capital, Proportionally Consolidated Group Debt, or the Excess Cash Amount, in each case as of the Effective Time; |
(v) | the Acquired Companies and Subsidiaries shall be operated in the ordinary course of business consistent with past practice in all material respects; |
(vi) | The Kanan Intercompany Loan shall not be repaid; and |
(vii) | no agreement shall be entered into that would be in breach of the foregoing clauses (i) through (vi); |
(d) | If, between the Closing Date and 11:59p.m. on December 31, 2017 (such time, the “Effective Time”), a change, condition, effect, fact, circumstance, matter, occurrence, event or development shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect on (i) the Acquired Companies and Subsidiaries that conduct their respective businesses in the Republic of Peru, (ii) Energuate or (iii) the Group, taken as a whole, then Buyers shall have the right, exercisable prior to the Effective Time, upon giving written notice to Sellers (the “Right to Unwind Notice”) in the manner provided in Section 12.4 of the Purchase Agreement (which will be effective when given, notwithstanding any contrary provision in Section 12.4) to unwind the Transaction (the “Right to Unwind”). In the event that the Buyers exercise their Right to Unwind, Buyers and Seller shall take all actions necessary in order to cause, within ten (10) Business Days of exercise of the Right to Unwind: (A) all Acquired Interests to be transferred back to the Sellers, (B) the Initial Purchase Price to be transferred back to Buyers, (C) any amounts lent to Buyers pursuant to the Deferred Payment Agreement to be repaid to Sellers and the Deferred Payment Agreement to be terminated, (D) the obligations under the Note Indenture to be transferred back to Sellers, (E) the Trust Agreements to be terminated and all voting rights held by such trusts to be assigned back to the relevant Acquired Company or Subsidiary, (F) all other agreements entered into in connection with the Closing to be terminated (other than the Purchase Agreement and any other agreement entered into upon the signing of the Purchase Agreement), and (G) all other actions reasonably necessary to place Buyers and Sellers in a position as if the Closing had not occurred. Upon delivery of the Right to Unwind Notice to Sellers, Sellers shall be obligated to perform the actions set forth in immediately preceding sentence, notwithstanding any dispute as to whether a Material Adverse Effect on (i) the Acquired Companies and Subsidiaries that conduct their respective businesses in the Republic of Peru, (ii) Energuate or (iii) the Group, taken as a whole, has occurred. For the avoidance of doubt, in the event that the Right of Unwind is exercised, (A) Buyers and Sellers each retain all rights and obligations under the Purchase Agreement and no rights of Buyers or Sellers shall be deemed waived or forfeited under the Purchase Agreement as a result of the Right to Unwind and (B) Sellers performance of their obligations in this Section 2(d) shall not be deemed as any waiver or agreement that any Material Adverse Effect on (i) the Acquired Companies and Subsidiaries that conduct their respective businesses in the Republic of Peru, (ii) Energuate or (iii) the Group, taken as a whole, has occurred. |
3. | References. Except as specifically modified in this Amendment Agreement, all of the terms and conditions of the Purchase Agreement shall remain in full force and effect. All references to the Purchase Agreement in any document, instrument, agreement, or writing delivered pursuant to the Purchase Agreement (as amended hereby) shall hereafter be deemed to refer to the Purchase Agreement as amended hereby. |
4. | Counterparts. This Amendment Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. |
5. | Governing Law. This Amendment Agreement is to be governed by, and construed and enforced in accordance with, the laws of the State of New York. |
SELLER 1: | ||
INKIA ENERGY LIMITED | ||
By: | ||
Name: Alberto Triulzi | ||
Title: Director |
SELLER 2: | ||
IC POWER DISTRIBUTION HOLDINGS PTE. LTD | ||
By: | ||
Name: Alberto Triulzi | ||
Title: Authorized Signatory |
BUYER 1: | ||
NAUTILUS INKIA HOLDINGS LLC | ||
By: | ||
Name: Thomas Lefebvre | ||
Title: Authorized Signatory |