OR PLAN THE ASSETS OF WHICH CONSTITUTE ASSETS OF BUYER.
5.11.
AVAILABILITY OF CAPITAL.
BUYER HAS AVAILABLE, AND
CAN IMMEDIATELY CALL, COMMITTED CAPITAL, DIRECTLY OR INDIRECTLY, FROM
INSTITUTIONAL INVESTORS WHICH TOGETHER WITH THE AVAILABLE CAPITAL OF BUYER
TOTALS AT LEAST ONE BILLION TWO HUNDRED NINETY-SIX MILLION DOLLARS
($1,296,000,000.00), WHICH WILL BE SUFFICIENT TO PAY THE AGGREGATE PURCHASE
PRICE AT THE TIMES INDICATED HEREIN AND AT THE CLOSINGS AS SCHEDULED BY THE
PARTIES AND CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
5.12.
INVESTMENT COMPANY ACT.
BUYER IS EXCLUDED FROM THE
DEFINITION OF "INVESTMENT COMPANY" BY REASON OF SECTION 3(C)(7) UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
BUYER, AND EACH EQUITY OWNER THEREOF, IS A "QUALIFIED PURCHASER" WITHIN THE
MEANING OF SECTION 2(A)(51)(A) OF THE INVESTMENT COMPANY ACT.
5.13.
PUBLIC UTILITIES HOLDING COMPANY ACT.
BUYER IS NOT
AN "AFFILIATE" OF DPL INC., AS DEFINED UNDER SECTION 2(A)(11) OF THE PUBLIC
UTILITIES HOLDING COMPANY ACT OF 1935.
13
ARTICLE VI
COVENANTS
6.1.
REGULATORY AND OTHER AUTHORIZATIONS.
EACH OF
THE SELLERS AND BUYER WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ALL
AUTHORIZATIONS, CONSENTS, ORDERS AND APPROVALS OF ALL FEDERAL, STATE AND FOREIGN
REGULATORY BODIES AND OFFICIALS THAT MAY BE OR BECOME NECESSARY FOR THE
PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT AND WILL COOPERATE
FULLY WITH THE OTHER PARTY IN PROMPTLY SEEKING TO OBTAIN ALL SUCH
AUTHORIZATIONS, CONSENTS, ORDERS AND APPROVALS.
NEITHER THE SELLERS NOR BUYER
WILL TAKE ANY ACTION THAT WILL HAVE THE EFFECT OF DELAYING, IMPAIRING OR
IMPEDING THE RECEIPT OF ANY REQUIRED APPROVAL.
6.2.
FURTHER ACTION.
EACH OF THE SELLERS AND BUYER
SHALL EXECUTE SUCH DOCUMENTS AND OTHER PAPERS AND TAKE SUCH FURTHER ACTIONS AS
MAY BE REASONABLY REQUIRED OR DESIRABLE TO CARRY OUT THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, INCLUDING USING THEIR COMMERCIALLY REASONABLE
EFFORTS TO OBTAIN THE GP CONSENTS AND PROVIDE ANY COMMERCIALLY REASONABLE
INDEMNIFICATION, AGREEMENTS, CERTIFICATES, OPINIONS AND OTHER DOCUMENTS TO THE
PARTNERSHIPS IN CONNECTION THEREWITH.
UPON THE TERMS AND SUBJECT TO THE
CONDITIONS OF THIS AGREEMENT, EACH OF THE PARTIES SHALL USE ITS COMMERCIALLY
REASONABLE EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTIONS AND TO DO, OR
CAUSE TO BE DONE, ALL OTHER THINGS NECESSARY, PROPER OR ADVISABLE TO CONSUMMATE
AND MAKE EFFECTIVE AS PROMPTLY AS PRACTICABLE THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
6.3.
CONFIDENTIALITY.
THE CONFIDENTIALITY
AGREEMENTS BETWEEN DPL INC. AND EACH OF (I) ALPINVEST PARTNERS CS INVESTMENTS
2003 C.V. AND ALPINVEST PARTNERS FUND OF FUNDS CUSTODIAN II A.B.V. AND (II)
LEXINGTON PARTNERS INC. AND ATTACHED AS EXHIBIT C (THE "CONFIDENTIALITY
AGREEMENTS") ARE INCORPORATED BY REFERENCE HEREIN AND SHALL CONTINUE IN FULL
FORCE AND EFFECT.
ANY NONPUBLIC INFORMATION PROVIDED TO BUYER PURSUANT TO THIS
AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
SUBJECT TO THE TERMS OF THE CONFIDENTIALITY AGREEMENTS, AND BUYER AGREES TO BE
BOUND BY THE CONFIDENTIALITY AGREEMENTS AS IF NAMED AS A PARTY THERETO.
THE
DEFINITION OF "EVALUATION MATERIAL" CONTAINED IN THE CONFIDENTIALITY AGREEMENTS
IS HEREBY AMENDED TO INCLUDE THIS AGREEMENT,