Assistance with Financing. (a) The Seller Parties acknowledge that the Buyer Parties intend to pursue the Anticipated Financing and agree to provide such assistance (and to cause their respective Representatives to provide such assistance) with the Financing as is reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10. (b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives. (c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hudson Pacific Properties, Inc.)
Assistance with Financing. (a) The Seller Parties acknowledge that the Buyer Parties intend to pursue the Anticipated Financing Acquired Companies and agree to provide such assistance (their Subsidiaries shall, and shall use commercially reasonable efforts to cause their respective Representatives to provide such assistance) to, cooperate in connection with the arrangement of the Financing as is may be reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance including by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation participating in meetings, presentations, road shows, due diligence sessions and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings sessions with rating agencies; (iiiii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed assisting with the SEC in connection with the Financing or that is preparation of the type and form customarily included or incorporated by reference in materials for rating agency presentations, offering documents, private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing; (xiii) furnishing Buyer and its financing sources with historical financial information and similar information regarding the tenants in the Target Properties that is Acquired Companies and their Subsidiaries as may be reasonably requested by Buyer, including all historical financial statements and financial data of the type reasonably identified by Buyer as being required by Regulation S-X, Regulation S-K and form customarily included Regulation D under the Securities Act, to use in securitizations of mortgage loans which are secured by commercial properties, connection with the Financing or any other financing transaction executed in connection with the transactions contemplated hereby (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense“Required Financial Information”); (iv) cooperate with Buyer and its financing sources in providing business and financial projections regarding the Acquired Companies and their Subsidiaries as may be reasonably requested by Buyer; (v) using commercially reasonable efforts to obtain customary accountants’ comfort letters letters, legal opinions, surveys, affidavits, subordination and consents and participation in due diligence sessions conducted in connection with the provision non-disturbance agreements, memoranda of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtainleases, consents, landlord waivers waivers, title policies and estoppelscommitments, or nonand pay-disturbance agreements off letters as may be reasonably requested by Buyer and its financing sources; provided, however, that the Acquired Companies shall not be required to request any opinion letter with respect to the applicable counterpartiesHOA Agreements; (vi) granting executing and delivering, as of the Buyer Parties Closing Date, such definitive financing documents as may be reasonably requested by Buyer; (vii) taking all corporate actions necessary to authorize the consummation of the Financing and to permit the proceeds thereof to be made available pursuant to the terms of the definitive agreements as to the Financing; (viii) reasonably facilitating the pledge of collateral and the Financing Sources access to perfection of the Target Properties security interests therein; and (including related documentation or ix) taking all other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are actions reasonably necessary requested by Buyer in connection with the Financing; provided, however, that, that notwithstanding anything to the contrary in this Agreementforegoing, (Aa) without neither the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources Acquired Companies nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates Subsidiaries shall be required to pay or commit to pay any cash commitment or other consideration, make any accommodation or commitment similar fee or incur any other liability or other obligation expense in connection with the obligations Financing prior to the Closing Date, (b) neither the Acquired Companies nor any of their Subsidiaries shall be required to issue any private placement memoranda or prospectus (and no such private placement memoranda or prospectus shall reflect the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party Acquired Companies or any of their respective Affiliates or Subsidiaries as the issuer) and (c) neither the Acquired Companies nor their Representatives for any action taken by shall be required to take any of them at the request foregoing actions where such actions would violate the attorney-client privilege or work product or similar doctrines of the Buyer Parties any one or more of Sellers or the Financing Sources pursuant to Section 5.10(a), Acquired Companies. Buyer and Chanticleer shall jointly and severally indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives Acquired Companies from and against any and all damagesliabilities, losses, costs or liabilities (including expenses damages, claims, costs, expenses, interest, awards, judgments and expenses in connection with the defense of any Action) penalties suffered or incurred by any one or more of them (i) in connection with arrangement of the Financing that would not otherwise be or have been incurred by any one or more of the Acquired Companies. Without limiting the generality of the immediately preceding sentence, Buyer shall pay each of the Acquired Companies’ fees, charges, title premiums and expenses, and each portion of such fees, charges, title premiums and expenses, incurred in connection with the arrangement duties of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided Acquired Companies under this Section 5.11 by the Seller Parties or their Representatives)later of (a) fifteen (15) days after the Acquired Companies, (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates them, delivers a statement to Buyer or Representatives.
(cb) All non-public the date when any such fees, charges, title premiums and expenses are due and payable under the invoice of the applicable service provider or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance applicable third party, each with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) respect to any Financing Sources or prospective Financing Sourcesof such fees, including any underwriterscharges, initial purchasers or placement agents title premiums and expenses including, without limitation, the auditing fees and expenses of the Acquired Companies in excess of what the auditing fees and expenses of the Acquired Companies and Affiliates would have been (without regard to the requirements in connection with the Financing, Financing or the transactions under this Agreement) with respect to their respective counsel financial statements as at and auditors subject to customary confidentiality arrangements for use by the two years ended December 30, 2007 and any of them of such information in connection with incremental costs for re-auditing the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing 2005 and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein2006 financial statements.
Appears in 1 contract
Sources: Stock Purchase Agreement (Chanticleer Holdings, Inc.)
Assistance with Financing. (a) The Seller Parties acknowledge that the Buyer Parties intend Company agrees to pursue the Anticipated Financing and agree to provide such assistance (use its commercially reasonable efforts to, and to cause their respective Representatives its Subsidiaries to, cooperate with Merger Sub, Merger Sub’s shareholders, and the arrangers, lenders and advisors to provide such assistance) with the Financing as is reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgetsMerger Sub, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of any financing the Financing proceeds of which are to be used to consummate, or otherwise to be consummated contemporaneous with or at or after the Closing in respect of the transactions contemplated by this Agreement, including without limitation, participation in meetings (including direct contact between the Company’s senior management and prospective lenders and investors), due diligence sessions, road shows and rating agency presentations; the preparation of confidential information memoranda, offering memoranda, private placement memoranda, registration statements, prospectuses and similar documents; assisting syndication efforts by utilizing the Company’s and its Affiliates’ existing banking and financial relationships; delivery of the Company’s unaudited consolidated financial statements for the three months ended March 31, 2004 and 2005 (which have been subject to a SAS 100 review by the Company’s independent auditors); participation in the preparation of pro forma financial information, projections, financial models and similar financial information; completion of any information used additional audit work necessary for the Company’s audited financial statements to comply with Regulation S-X promulgated under the Securities Act and applicable rules and regulations promulgated by the Securities and Exchange Commission and otherwise in customary form for an offering of securities registered on Form S-1 under the Securities Act; participation in the negotiation of any commitment letters, underwriting or placement agreements, indentures, supplemental indentures, loan agreements, escrow and security agreements, pledge and security documents, other definitive financing documents, or other requested certificates or documents, including a certificate of the chief financial officer of the Surviving Corporation and its Subsidiaries with respect to solvency matters; and delivery of comfort letters of accountants as may be reasonably requested by Merger Sub. The Company will use its commercially reasonable efforts to cause its independent auditors and former independent auditors to (i) cooperate in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), with any such financing; (ii) as a result of acts at the Target Properties of the Buyer Partiesdeliver customary comfort letters and bring-down comfort letters, any Financing Sources or their respective Affiliates or Representatives in each case, in accordance with SAS 72 and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10cooperate in due diligence and drafting sessions with arrangers, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or and/or placement agents in connection with the Financing, or any such financing. The Company will use its commercially reasonable efforts to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information assist Merger Sub in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings satisfying all of the Financing and (iii) conditions to the extent required financing contemplated by applicable securities laws or the Commitment Letters.
(b) The Company shall cooperate with any reasonable requests of Merger Sub related to the recording of the transaction contemplated hereby as otherwise is customary a recapitalization for financial reporting purposes, including, without limitation, to include appropriate disclosure with regard to such recording in private offerings of securities pursuant all mailings to Rule 144A/Regulation S under stockholders by the Securities Act, in any registration statements or prospectuses filed with Company describing the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference thereintransactions contemplated hereby.
Appears in 1 contract
Assistance with Financing. (a) The Each Seller Parties acknowledge that the Buyer Parties intend to pursue the Anticipated Financing and agree to provide such assistance (Seller Representative shall, and shall use commercially reasonable efforts to cause their respective Representatives to provide such assistance) to, cooperate in connection with the arrangement of the Financing as is may be reasonably requested by the Buyer Parties (providedBuyer, however, that such requested assistance does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance its Affiliates or their respective Representatives including by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation participating in meetings, presentations, road shows, due diligence sessions and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings sessions with rating agencies; (iiiii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed assisting with the SEC in connection with the Financing or that is preparation of the type and form customarily included or incorporated by reference in materials for rating agency presentations, offering documents, private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing; (xiii) furnishing Buyer, its Affiliates or their respective Representatives and financing sources with historical financial information and similar information regarding Sellers, the tenants in Business, the Target Properties that is Assets or the Assumed Liabilities as may be reasonably requested by Buyer, its Affiliates or their respective Representatives and financing sources, including all historical financial statements and financial data of the type reasonably identified by Buyer as being required by Regulation S-X, Regulation S-K and form customarily included Regulation D under the Securities Act, to use in securitizations of mortgage loans which are secured by commercial properties, (y) connection with the Financing or any existing third-party reports regarding other financing transaction executed in connection with the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense)Contemplated Transactions; (iv) cooperate with Buyer, its Affiliates or their respective Representatives and financing sources in providing business and financial projections regarding Sellers and their Subsidiaries as may be reasonably requested by Buyer, its Affiliates or their respective Representatives and financing sources; (v) using commercially reasonable efforts to obtain customary accountants’ comfort letters, legal opinions, surveys, affidavits, subordination and non-disturbance agreements, memoranda of leases, consents, waivers, title policies and commitments and pay-off letters as may be reasonably requested by Buyer, its Affiliates or their respective Representatives and consents financing sources; (vi) executing and participation in due diligence sessions conducted delivering, as of the Closing Date, such definitive financing documents as may be reasonably requested by Buyer, its Affiliates or their respective Representatives and financing sources; (vii) reasonably facilitating the pledge of collateral and the perfection of the security interests therein; and (viii) taking all other actions reasonably requested by Buyer, its Affiliates or their respective Representatives and financing sources in connection with the provision of such comfort letters Financing and consents; (v) at the reasonable request repayment of the Buyer Parties Indebtedness Payoff Amount and the Financing Sources, using reasonable best efforts to deliver release of any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the FinancingEncumbrances securing such Indebtedness; provided, however, that, that notwithstanding anything to the contrary in this Agreementforegoing, (Aa) without the prior written consent of the no Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash commitment or other consideration, make any accommodation or commitment similar fee or incur any other liability or other obligation expense in connection with the obligations of Financing prior to the Closing Date, (b) no Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates Subsidiaries shall be required to issue any private placement memoranda or Representatives for any action taken by prospectus (and no such private placement memoranda or prospectus shall reflect Sellers or any of them at their Subsidiaries as the request issuer) and (c) no Seller or their Representatives shall be required to take any of the foregoing actions where such actions would violate the attorney-client privilege or work product or similar doctrines of any one or more of the Sellers. Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and Parent shall jointly and severally indemnify and hold harmless the each Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) Liabilities suffered or incurred by any one or more of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates that would not otherwise be or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use been incurred by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws one or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference thereinmore Sellers.
Appears in 1 contract
Sources: Asset Purchase Agreement (Chanticleer Holdings, Inc.)
Assistance with Financing. Prior to the Closing, the Sellers shall cause the Companies to provide to Buyer, and shall use their commercially reasonable best efforts to cause the respective officers, employees and advisors, including legal and accounting, of the Companies to, provide to Buyer all cooperation reasonably requested by Buyer that is necessary in connection with Buyer and its Affiliates obtaining the debt financing necessary to finance a portion of the proceeds to be used for the transactions contemplated by this Agreement (the “Debt Financing”), including using commercially reasonable best efforts to (a) The Seller Parties acknowledge that participate in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (b) provide assistance in preparation of confidential information memoranda (including execution and delivery of a customary representation letter) and other materials to be used in connection with obtaining the Buyer Parties intend to pursue the Anticipated Debt Financing and agree all information (including financial information) customarily contained therein, (c) provide assistance in the preparation for, and participate in, meetings, due diligence sessions and similar presentations to provide such assistance and with, among others, prospective lenders, investors and rating agencies, (d) enter into a loan agreement and to cause their respective Representatives to provide such assistancerelated documents (including pledge and security documents), (e) with the Financing as is execute and deliver customary certificates, legal opinions or other documents reasonably requested by Buyer (including a certificate of the Buyer Parties chief financial officer of the Companies with respect to solvency matters) and otherwise reasonably facilitate the pledging of collateral contemplated by the Debt Financing (including taking all actions reasonably necessary to (i) permit the prospective lenders involved in the Debt Financing to evaluate the Companies’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and to conduct the appraisals and field examinations relating thereto as contemplated by the Debt Financing and (ii) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing) and (f) provide the financial and other information necessary for the satisfaction of the obligations and conditions set forth in the agreements relating to the Debt Financing within the time periods required thereby in order to permit a Closing Date on or prior to the Termination Date; provided, however, that nothing herein shall require such requested assistance does not cooperation to the extent it would interfere unreasonably interfere with the ongoing business or operations of the Seller Parties)Companies. Such assistance by the Seller Parties shall include the following If this Agreement is terminated pursuant to the extent reasonably requested by the Buyer Parties Section 7.1(a) or 7.1(b)(ii) (but with respect to the Financing: (iSection 7.1(b)(ii) participation in and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated only for a deliberate breach by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iiiBuyer), solely to the extent such dataBuyer shall, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, promptly upon request by the Seller Parties, Sellers reimburse the Seller Parties Companies for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses Companies in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representativessuch cooperation.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein.
Appears in 1 contract
Assistance with Financing. (a) The Seller Parties acknowledge that Company agrees to use commercially reasonable efforts to provide, and the Buyer Parties intend to pursue the Anticipated Financing and agree to provide such assistance (and Company shall use commercially reasonable efforts to cause its Subsidiaries (including, for the avoidance of doubt, ▇▇ ▇▇▇▇▇▇ Enterprises, Inc.) and its and their respective Representatives to provide such assistance) provide, upon the reasonable request of Parent, and at Parent’s sole cost and expense, all commercially reasonable cooperation in connection with the Financing arrangement of the Debt Financing, as is applicable, in connection with the transactions contemplated hereby, including:
(i) as promptly as reasonably practical: (A) furnishing Parent, its financing sources and their respective Representatives with the Required Information and such financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent (including in connection with Parent’s preparation of pro forma financial statements); and (B) informing Parent if the Buyer Parties (providedCompany, however, that such requested assistance does not unreasonably interfere with Seller or any of their respective Affiliates has knowledge of any facts which could reasonably be expected to require the ongoing operations restatement of the Seller Parties). Such assistance by financial statements described in the Seller Parties shall include the following foregoing clause (A) for such financial statements to the extent reasonably requested by the Buyer Parties comply with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; GAAP;
(ii) assisting in preparation for and participation in marketing efforts (including a reasonable number of meetings and assistance calls), drafting sessions, rating agency presentations, road shows and accounting and other due diligence sessions (including using commercially reasonable efforts to cause the Company’s and/or its Subsidiaries’, as applicable, independent auditors to participate therein and to otherwise cooperate with the reasonable requests of Parent) and sessions with prospective lenders, investors and ratings agencies and assisting Parent in obtaining ratings as contemplated by the Debt Financing;
(iii) assisting Parent and the Debt Providers with the preparation of materials for rating agency presentations presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and meetings similar documents for the Debt Financing, including the execution and delivery of customary representation letters in connection with rating agencies; (iii) delivery to the Buyer Parties bank information memoranda and their financing sources reviewing and commenting on Parent’s draft of the Financing Information, including: (v) a business description and “Management’s Discussion and Analysis” of the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under offering documents relating to the Securities Act filed with the SEC Debt Financing;
(iv) providing appropriate representations in connection with the Financing or that is preparation of financial statements and other financial data of the type Company and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used its Subsidiaries, requesting accountants’ consents in connection with the Financing; (x) information regarding the tenants in the Target Properties that is use of the type Company’s and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Partiesits Subsidiaries’ (or their controlling Affiliatespreviously acquired entities’) possession or control financial statements in offering documents, prospectuses and other documents to be filed with the Securities and Exchange Commission (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv“SEC”) and using commercially reasonable efforts to obtain customary accountants’ cause its independent auditors (and independent auditors of previously acquired entities, should such auditors have audited financial statements to be included in such offerings documents, prospectuses or other documents to be filed with the SEC) to issue comfort letters to the Debt Providers and consents other financing sources providing the Debt Financing in a form (including as to negative assurance and participation in due diligence sessions conducted change period) customarily received by underwriters or initial purchasers of debt securities, as the case may be;
(v) assisting, and using commercially reasonable efforts to cause its independent auditors to assist, Parent in connection with the provision preparation of such comfort letters pro forma financial information and consents; financial statements to the extent required by SEC rules and regulations or necessary (vor reasonably required by Parent’s financing sources (including the Debt Providers)) at to be included in any offering documents;
(vi) providing monthly financial reports consistent with the reasonable request Company’s and its Subsidiaries’ past practice;
(vii) executing and delivering as of the Buyer Parties Closing any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent (including customary evidence of insurance and a certificate of the chief financial officer of the Company or any of its Subsidiaries with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letter) and otherwise facilitating the pledging of collateral (including cooperation in connection with the pay-off of the Funded Indebtedness and the Financing Sources, using reasonable best release of related Liens and termination of security interests and cooperation in connection with Parent’s efforts to deliver any requests for, obtain environmental assessments and title insurance);
(viii) providing commercially reasonable assistance to reasonably cooperate with the Buyer Parties in seeking Parent to obtainobtain waivers, consents, landlord waivers estoppels and estoppelsapprovals from other parties to material leases, encumbrances and Contracts to which the Company or non-disturbance agreements any of its Subsidiaries is a party and, upon reasonable advance notice, to arrange discussions, during normal business hours and without undue interruption to the applicable counterparties; Company’s and its Subsidiaries’ businesses, among Parent, the Debt Providers and their respective Representatives with other parties to material leases, encumbrances and Contracts as of the Closing;
(viix) granting taking all commercially reasonable actions necessary to (A) permit Parent’s financing sources (including the Buyer Parties Debt Providers) to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the Financing Sources access purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations and (B) establish bank and other accounts and blocked account agreements and lock box arrangements to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably extent necessary in connection with the Debt Financing; provided;
(x) taking all corporate actions, however, that, notwithstanding anything subject to the contrary in this Agreement, (A) without the prior written consent occurrence of the Seller PartiesClosing, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions Parent that are in necessary or customary to permit the control consummation of the Seller Parties. The Seller Parties will provide Debt Financing, including any high yield financing, and to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries (not needed for other purposes), to be made available on the Closing Date to consummate the transactions contemplated by this Agreement; and
(xi) providing at least five (5) Business Days prior to the Buyer Parties Closing Date all documentation and other information about the Financing Sources such information within their (or their controlling Affiliates’) possession or control Company and its Subsidiaries as may be reasonably necessary so that is required by applicable “know your customer” and anti-money laundering rules and regulations including without limitation the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10USA PATRIOT Act.
(b) Notwithstanding anything the foregoing, nothing in this Agreement shall require any such cooperation to the contrary extent that it would (i) require the Company or any of its Subsidiaries to enter into any financing, purchase or other agreement for the Debt Financing that would be effective prior to the Closing or (ii) result in this Agreementany officer, none director or manager or other Representative of the Seller Parties Company or their Affiliates any of its Subsidiaries incurring any personal liability with respect to any matters relating to the Debt Financing. Neither the Company nor any of its Subsidiaries shall be required to pay or commit to pay any cash commitment or other consideration, make any accommodation or commitment or incur any liability or other obligation fees in connection with the obligations of Debt Financing prior to the Seller Parties under Section 5.10(a) or otherwise in connection with Closing, and the Financing, other than reasonable out-of-pocket costs. The Buyer Parties Company and its Subsidiaries shall promptly, upon request be reimbursed by the Seller Parties, reimburse the Seller Parties Parent for all any reasonable and documented out-of-pocket costs and expenses incurred or otherwise payable by any Seller Party the Company or any of their respective Affiliates or Representatives for any action taken its Subsidiaries in connection with the cooperation contemplated by any of them at the request of the Buyer Parties or the Financing Sources pursuant to this Section 5.10(a), and 7.6. Parent shall indemnify and hold harmless the Seller Parties Company and their respective its Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) Liabilities suffered or incurred by any of them (i) in connection with the arrangement of the Debt Financing and any information used in connection therewith or Alternate Debt Financing (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other including actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to in accordance with this Section 5.107.6), except to the extent finally determined by a court that such Liabilities arise out of competent jurisdiction to have arisen or result from the fraud, gross negligence, any willful misconduct or bad faith of Seller, the Company, any of their respective Affiliates or any Representatives of any of the Seller Parties or any of their Affiliates or Representativesforegoing.
(c) All non-public or other confidential information The Company shall use commercially reasonable efforts to periodically update any Required Information provided by to Parent as may be necessary so that such Required Information (i) is Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Information” and (iii) would not, after giving effect to such update(s), result in the Marketing Period to cease to be deemed to have commenced. For the avoidance of doubt, Parent may, in order to most effectively access the financing markets, require the reasonable cooperation of the Company under this Section 7.6 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing; provided, that, for the avoidance of doubt, the Marketing Period shall not be applicable as to each attempt to access the markets.
(d) Seller Parties pursuant and the Company hereby consent to this Agreement shall be kept confidential the use of the Company’s and its Subsidiaries’ logos in accordance connection with the Confidentiality AgreementDebt Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources Company or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with its Subsidiaries or the Financing, (ii) to rating agencies in connection with obtaining ratings reputation or goodwill of the Financing and (iii) to the extent required by applicable securities laws Company or as otherwise is customary in private offerings any of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference thereinits Subsidiaries.
Appears in 1 contract
Assistance with Financing. (a) The Prior to the Closing, Seller Parties acknowledge that the Buyer Parties intend shall use commercially reasonable efforts to pursue the Anticipated Financing provide, and agree to provide such assistance (shall cause each Acquired Company, and shall use commercially reasonable efforts to cause their respective Representatives each Representative of Seller and each Acquired Company, to provide such assistance) use commercially reasonable efforts to provide, cooperation in connection with the Financing arrangement of the financing contemplated by the Debt Commitment Letter (including any Alternative Financing) as is may be reasonably requested by Buyer, including using commercially reasonable efforts with respect to (a) participation on a timely basis in a reasonable number of meetings and due diligence, lender, investor, rating agency and other presentations, (b) furnishing Buyer and its financing sources with (x) the historical financial statements regarding the Business necessary to satisfy the conditions set forth in paragraph 5 of Annex II of the Debt Commitment Letter (or the analogous provision in any Alternative Financing), and (y) such other pertinent financial and other information as Buyer or its financing sources shall reasonably request in order to consummate the Debt Financing or as is customary for the arrangement of loans contemplated by the Debt Financing, (c) reasonably assisting the Buyer Parties and its financing sources in (provided1) the preparation of offering documents, howeverprivate placement memoranda, that bank information memoranda and similar documents in connection with any portion of such requested assistance does not unreasonably interfere financing, (2) the preparation of materials for due diligence, lender, investor, rating agency and other presentations, and (3) the compliance with the ongoing operations reasonable requirements of rating agencies, (d) reasonably cooperating with the marketing efforts of Buyer and its financing sources for any portion of such financing, (e) reasonably facilitating the pledging of collateral (subject to the occurrence of the Seller PartiesClosing). Such assistance by , including cooperating with the Seller Parties shall include efforts of Buyer to obtain appraisals, financial analyses, surveys, environmental assessments, third party consents and estoppels, mortgage financeability and title insurance, (f) reasonably cooperating with the following efforts of Buyer and its financing sources to ensure that any syndication efforts benefit from the extent existing lending and investment banking relationships of the Acquired Companies, (g) taking such actions reasonably requested by Buyer or any such financing source to satisfy any requirements necessary to consummate such financing and otherwise reasonably assisting and cooperating with the satisfaction of the conditions to such financing, (h) entering into one or more credit or other financing-related agreements and executing any certificates or other documents on terms satisfactory to Buyer Parties on behalf of Buyer or an Acquired Company in connection with such financing (so long as such documents would not have any effect in the absence of a Closing), (i) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer to permit the consummation of such financing and the direct borrowing or incurrence of all of the proceeds of such financing at the Closing, (j) obtaining releases (together with customary release letters and certifications), of existing Liens, guarantees and obligations with respect to Indebtedness; provided that any releases of Liens, guarantees and Indebtedness contained in all such agreements and documents shall be subject to the occurrence of the Closing, (k) providing customary authorization letters with respect to the Financing: bank information memoranda, and (il) participation furnishing all documentation and other information required by a Governmental Entity under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act of 2001, but, in and assistance with the Marketing Efforts related each case, solely as relating to the Financing; Acquired Companies and that has been reasonably requested not less than five (ii5) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery days prior to the Buyer Parties and their financing sources of the Financing InformationClosing; provided, including: that (vx) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties shall not be required to pay any commitment or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC similar fee in connection with the Financing such financing and (y) no Acquired Company shall be required to pay any commitment or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used similar fee in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely such financing prior to the extent such data, information or items are in the Closing. The Seller Parties’ (or their controlling Affiliates’) possession or control (or hereby consents to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted use of each Acquired Company’s logos in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financingfinancing; provided, howeverthat such logos are used solely in a manner that is not intended or reasonably likely to harm or disparage such Acquired Company, thator its reputation, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted goodwill or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10marks.
(b) Notwithstanding anything to the contrary in this Agreement, none of Seller, the Seller Parties Acquired Companies or their Affiliates any Representative of any of the foregoing, shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection provide or prepare pro forma financial information unless (A) Buyer provides such Person with the arrangement of the Financing information reasonably requested by such Person that is necessary to prepare such pro forma information and any (B) such pro forma information used in connection therewith (other than historical information relating is otherwise unavailable to the Buyer (in which case Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representativesshall use commercially reasonable efforts to provide such pro forma information), (ii) as a result of acts at the Target Properties of the Buyer Partiespay any commitment or other similar fee, any Financing Sources or their respective Affiliates or Representatives and (iii) all provide Regulation S-X compliant financial statements, (iv) approve any document or other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except matter related to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct Financing or bad faith incur any liability of any of the Seller Parties kind (or any of their Affiliates or Representatives.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and cause their Representatives shall be permitted to disclose such information incur any liability of any kind) prior to the Closing, (iv) to enter into any Financing Sources agreement or prospective Financing Sources, including any underwriters, initial purchasers or placement agents commitment in connection with the Debt Financing (or any Alternative Financing) which would be effective prior to the Closing or provide any certification or opinion of Seller or any Acquired Company (other than customary authorization letters referred to in 5.2(a)(k)), (vi) provide any certificate, comfort letter or to their respective counsel and auditors subject to customary confidentiality arrangements for use by opinion of any of them of such information its Representatives (other than customary authorization letters referred to in connection with the FinancingSection 5.2(a)(k)), (iivii) provide access to rating agencies in connection with obtaining ratings of the Financing and (iii) or disclose any information to Buyer or its Representatives to the extent required by such disclosure would jeopardize the attorney-client privilege, attorney work product protections or similar protections or violate any applicable securities laws Law or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in (viii) take any registration statements or prospectuses filed action that would (A) unreasonably interfere with the SEC day-to-day operations of Seller or the Acquired Companies, (B) cause any representation, warranty or covenant in this Agreement or any private placement memoranda delivered Ancillary Document to prospective investors in connection be breached, (C) cause any director, manager, officer or employee of Seller or any Acquired Company to incur any personal liability, (D) conflict with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein.Law,
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Assistance with Financing. (a) The From the date of this Agreement until the earlier of (x) the termination of this Agreement in accordance with its terms and (y) the Closing, Seller Parties acknowledge shall use and provide commercially reasonable efforts to cooperate with Buyer as reasonably and timely requested by Buyer in connection with the arrangement and consummation of the Financing, including to (i) assign appropriate members of Company management as requested by Buyer (as part of their employment duties) to participate in a reasonable number of requested meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing, in each case, upon reasonable notice, assisting Buyer in securing the customary cooperation of the independent accountants of Seller and the Company, including by requesting that the Buyer Parties intend to pursue the Anticipated Financing such independent accountants provide, and agree to provide such assistance (and using commercially reasonable efforts to cause them to provide, customary comfort letters (including “negative assurance” comfort) and consents for use of their respective Representatives reports, on customary terms and consistent with their customary practice in connection with such offering, and providing cooperation with the underwriters’, placement agents’ and initial purchasers’ due diligence, (ii) assist with the provision of information used in Buyer’s preparation of (A) materials for investor presentations including projections for the Company, (B) registration statements (including the S-1 registration statement related to provide such assistancethe Financing), prospectuses, offering memoranda and private placement memoranda, (C) bank information memoranda (including a public-side version thereof) and customary lender presentations and marketing materials and (D) similar documents, in each case as necessary and customary in connection with the Financing (including the Required Information), (iii) provide customary authorization and representation letters, in each case as is reasonably requested by the Buyer Parties Financing Sources, (providediv) provide the lead arrangers or agents for, howeverand prospective lenders, that such requested assistance does not unreasonably interfere underwriters, placement agents and initial purchasers of, the Financing with all documentation and other information required with respect to Seller in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the ongoing operations USA PATRIOT ACT, Title III of the Seller Parties)Pub. Such assistance by the Seller Parties shall include the following L. 107-56, in each case to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation in Financing Sources and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection cooperate with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller PartiesSources’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financingdiligence; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a thirdall non-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) public or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The confidential information regarding Seller obtained by Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives.
(c4.05(a) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives Seller shall only be permitted required to disclose furnish such information (i) to any Financing Sources prospective lenders or prospective other proposed Financing Sources, including any underwriters, placement agents, initial purchasers or placement agents other third parties that have agreed to keep such information confidential pursuant to customary confidentiality undertakings with respect to such information; and provided further that nothing in this Agreement shall require any cooperation to the extent it would (1) require Seller or its board of directors to waive or amend any terms of this Agreement or agree to pay any commitment, financing or other fees or reimburse any expenses prior to the Closing; (2) require Seller to take any action that (A) would cause any representation or warranty in this Agreement to be breached by Seller, or (B) would conflict with or violate any applicable Laws; (3) unreasonably interfere with the operations of the Company, or (4) require Seller or the Company or their respective directors, officers or employees to execute, deliver or enter into, or perform any agreement, document or instrument, including any definitive financing document, with respect to any Financing or adopt resolutions approving the agreements, documents and/or instruments pursuant to which any Financing is obtained or pledge any collateral with respect to any Financing, that is not contingent upon the Closing. Buyer shall, promptly upon written request by Seller, reimburse Seller for its reasonable and documented out-of-pocket expenses incurred by or on behalf of Seller or the Company in connection with the performance of the obligations described in this subsection (a), and except in the case of Fraud by Seller or its Representatives, Buyer shall indemnify, defend and hold harmless Seller and the Company and their Representatives, to the fullest extent permitted by applicable law, from and against any liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (including consultant’s, accountant’s and attorney’s fees) suffered or incurred by them in connection with the arrangement of the Financing or any information used in connection therewith. The obligations in the two preceding sentences shall survive termination of this Agreement.
(b) Seller hereby consents to the use of its logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Seller or the reputation or goodwill of Seller.
(c) ▇▇▇▇▇ acknowledges and agrees that obtaining the financing contemplated by this Section 4.05, or any other financing, is not a condition to their respective counsel the Closing, and auditors affirms its obligations to consummate the Contemplated Transactions (subject to customary confidentiality arrangements for use by any of them of such information the conditions contained in connection with the Financing, (iithis Agreement) to rating agencies in connection with obtaining ratings irrespective and independently of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings availability of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference thereinsuch financing.
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Assistance with Financing. (a) The Seller Parties acknowledge that the Buyer Parties intend to pursue the Anticipated Financing In furtherance and agree to provide such assistance (and to cause their respective Representatives to provide such assistance) with the Financing as is reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere with the ongoing operations in limitation of the Seller Parties). Such assistance by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation terms of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and their financing sources of the Financing InformationSection 8.6, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinationsassist with Parent obtaining the requisite debt and/or equity financing in order to consummate the transactions contemplated by this Agreement (the “Financing”), collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything prior to the contrary in this AgreementClosing, (A) without the prior written consent of the Seller Partiesthe, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a)Company shall, and shall indemnify and hold harmless cause each of its Subsidiaries to (a) provide such reasonable cooperation as the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the Parent may reasonably request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (b) make available to the Parent and its representatives the officers of the Company and its Subsidiaries to execute any reasonably necessary officers’ certificates or management representation letters to the Company’s or its Subsidiaries’ accountants to issue unqualified reports with respect to the Company Financial Statements, the audited consolidated balance sheet of the Company and its Subsidiaries as of the Reference Date or December 31, 2006, together with the related consolidated statements of operations, stockholders’ equity (deficit) and cash flows for the period then ended and the notes thereto, and any additional unaudited financial statements necessary for inclusion in the Offering Materials (as defined below) (the “Required Financial Information”), (c) upon reasonable prior notice, use commercially reasonable efforts to make senior management and other representatives of the Company and its Subsidiaries available to participate in (i) meetings with investors and rating agencies and (ii) to rating agencies the preparation of any information packages, offering memoranda, prospectuses and other offering materials (the “Offering Materials”) or other materials reasonably required in connection with obtaining ratings such meetings, and (d) request that the former and present independent accountants of the Company and its Subsidiaries (i) cooperate with and assist Parent and the other parties involved in the Financing in preparing the Offering Materials, including the Required Financial Information, (ii) make work papers reasonably available to Parent and the other parties involved in the Financing and their respective representatives, (iii) if so requested by Parent’s lenders with respect to the Financing, deliver “comfort-letters” in customary form in connection with any offering or financing and (iv) deliver consents to the inclusion of financial statements required in connection with any offering or Financing; provided, however, that (A) all Offering Materials used prior to the Closing Date shall include disclaimers that none of the Company or its Subsidiaries, or their respective officers, directors or control persons (as such term is defined in the Securities Act of 1933 as amended) are responsible for any of the contents thereof and (B) Parent shall (1) provide copies to the Company of Offering Materials used prior to the Closing Date and (2) to the extent required by applicable securities laws or as otherwise is customary reasonably practicable, shall allow the Company an opportunity to comment thereon; and further provided that the obligations set forth in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed this Section 8.7 do not unreasonably interfere with the SEC ongoing business of the Company, cause any representation or warranty in this Agreement to be breached, cause any private placement memoranda delivered closing condition set forth in Article XIII to prospective investors fail to be satisfied or otherwise cause the breach of this Agreement or involve any binding commitment by the Company or the Stockholders or any of their Affiliates. Any activities undertaken by the Stockholders in connection with this Section 8.7 or in respect of obtaining the FinancingFinancing for Parent will be at the sole expense of Parent and will not require any acts that result in an undue burden on or unreasonable disruption to the Company’s business under the circumstances.
(b) The Company shall use best efforts (including expenditure of funds, as necessary, but not requiring the Company to commence legal action against its auditors referred to below) to deliver by April 7, 2007, but in each caseany event the Company shall deliver no later than April 18, including any registration statement2007, exhibitthe audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, report or disclosure statement filed 2006, together with the SEC related audited consolidated statements of operations, stockholders’ equity (deficit) and incorporated cash flows for the periods then ended and the notes thereto, accompanied by reference thereinthe reports thereon of Salibello & Broder LLP. Parent shall pay thirty percent (30%) of all fees and related expenses in excess of $150,000 of Salibello & Broder LLP in connection with such audit.
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Assistance with Financing. (a) 5.5.1 The Seller Parties acknowledge that the Buyer Parties intend agrees to pursue the Anticipated Financing and agree to provide such assistance (and use commercially reasonable efforts to cause the Group Companies to provide, upon the reasonable request of the Purchaser, and (in accordance with Clause 5.5.2) at the Purchaser’s sole cost and expense, all commercially reasonable cooperation in connection with the arrangement of the New Note Offering or any other financing contemplated in the Commitment Letter (collectively, the “Applicable Financing”) in connection with the transactions contemplated hereby, including:
(i) as promptly as reasonably practical furnishing the Purchaser, its financing sources and their respective Representatives to provide such assistance) with the Financing Required Information and such quarterly financial and other information regarding the Group as is may be reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere Purchaser consistent with the ongoing operations Group’s past practice (including in connection with the Purchaser’s preparation of pro forma financial statements) and as may be reasonably necessary for the Debt Providers of the Seller Parties). Such assistance by Applicable Financing to receive comfort from the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: auditors under (iiv) participation in and assistance with the Marketing Efforts related to the Financing; below;
(ii) assisting in preparation for, and senior management of the Group’s participation in, marketing efforts (including a reasonable number of meetings and calls), drafting sessions, rating agency presentations, road shows and accounting and other due diligence sessions (including using commercially reasonable efforts to cause the Group’s independent auditors to participate therein) and sessions with prospective lenders, investors and rating agencies and assisting the Purchaser in and assistance obtaining ratings as contemplated by the Applicable Financing;
(iii) assisting the Purchaser with the preparation of materials for rating agency presentations presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and meetings with rating agencies; (iii) delivery to similar documents for the Buyer Parties Applicable Financing which shall include an operating and their financing sources financial overview of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required business conducted by the rules Group Companies for the last three (3) fiscal years and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC most recent interim period;
(iv) providing customary representations in connection with the Financing or that is preparation of financial statements and other financial data of the type Group, requesting accountants’ consents in connection with the use of Group’s financial statements in offering documents and using commercially reasonable efforts to cause its independent auditors to issue customary “SAS 72” comfort letters (including circle-ups) to the Debt Providers and other financing sources providing the Applicable Financing in a form (including as to negative assurance) customarily included received by underwriters or incorporated by reference initial purchasers of debt securities in private placement memoranda pursuant to high yield Rule 144A/Regulation S offerings and participate in an accounting due diligence call prior to the launch of the Securities Act used New Note Offering, subject to their applicable professional standards and internal policies;
(v) assisting, and using commercially reasonable efforts to cause the Group’s independent auditors to assist, the Purchaser in connection with the Financing; preparation of pro forma financial information (xother than with respect to accounting comfort) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely financial statements to the extent such data, information or items are in the Seller Parties’ necessary (or their controlling Affiliates’reasonably required by the Purchaser’s financing sources (including the Debt Providers)) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation be included in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the any Applicable Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; offering documents;
(vi) granting providing documentary due diligence materials as is customary in a private offer and sale of debt securities in the Buyer Parties U.S. and European high yield markets under the Financing Sources access exemptions provided by Rule 144A and Regulation S under the U.S. Securities Act of 1933;
(vii) complying with customary publicity guidelines with respect to the Target Properties (offering of any Applicable Financing, including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) refraining from public comment regarding any such offering without the prior written consent of the Seller Parties, which Purchaser except as may be granted required by applicable law;
(viii) providing the necessary ‘know your customer’ documents reasonably requested by the Purchaser and its financing sources to permit the relevant Group Companies to execute or withheld accede to any documents entered into in its sole discretionconnection with any Applicable Financing;
(ix) executing and delivering as of or following the Closing any pledge and security documents, none legal opinions, other definitive financing documents, or other certificates or documents as may be reasonably requested by the Purchaser and otherwise facilitating the pledging or releasing of collateral (including cooperation in connection with the pay-off of Indebtedness and the release of related liens and termination of security interests); and
(x) taking all corporate actions, subject to the occurrence of the Buyer PartiesClosing, reasonably requested by the Purchaser that are necessary or customary to permit the consummation of the Applicable Financing.
5.5.2 The Seller agrees to (i) provide the Debt Providers of the ABL Facility and their Representatives the Required Information, and (ii) use commercially reasonable efforts to cause the Group Companies to provide, upon the reasonable request of the Purchaser, and (in accordance with Clause 5.5.3) at the Purchaser’s sole cost and expense, the Financing Sources nor Debt Providers of the ABL Facility and their Representatives shall have access to the right books and records, officers and employees, and Properties of the Group Companies in order to take conduct reasonably necessary field examinations and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, collateral audits in connection with the ABL Facility provided, however, that (i) the Seller Parties shall not unreasonably withhold their consent Debt Providers to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing ABL Facility or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources their Representatives shall schedule and coordinate all inspections examinations and audits with the Seller Parties and shall give the Seller Parties at least two four (24) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties(ii) such examinations or audits shall be conducted during normal business hours, the Financing Sources (iii) not more than two (2) such examinations or their Representatives intend to conduct audits shall be conducted, and (Civ) the Seller Parties shall be entitled to have representatives Representatives present at all times during any such inspection; and examination or audit.
5.5.3 Notwithstanding the foregoing, nothing in this Agreement shall require any such cooperation to the extent that it would (viii) taking such actions as are reasonably requested by require any Group Company to enter into any financing, purchase or other agreement for the Buyer Parties Applicable Financing that would be effective prior to the Closing or the Financing Sources to facilitate the satisfaction on a timely basis (ii) result in any officer, director, manager or other Representative of all Bridge Financing Conditions that are in the control any Group Company or of any member of the Seller Parties. The Seller Parties will provide Seller’s Group incurring any personal liability with respect to any matters relating to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light Applicable Financing. No member of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates Seller’s Group shall be required to pay any fees or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation expenses in connection with the obligations of Applicable Financing and no Group Company shall be required to pay any such fees or expenses prior to the Closing, and the Group shall be reimbursed by the Purchaser for any Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costsRefinancing Fees. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and Purchaser shall indemnify and hold harmless the Seller Parties Company and its Affiliates and each member of the Seller’s Group and their respective Affiliates and Representatives from and against any and all damages, losses, costs Losses suffered or liabilities (including expenses and expenses incurred by them in connection with the defense of any Action) suffered or incurred by any of them Applicable Financing (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other including actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to in accordance with this Section 5.10Clause 5.5), except to the extent finally determined by a court of competent jurisdiction to have arisen that such Losses result from the fraud, gross negligence, willful misconduct Group having provided the Purchaser (or bad faith omitted to provide the Purchaser) with information that was intentionally materially incorrect or misleading (including as a result of any of the Seller Parties or any of their Affiliates or Representativesits omission).
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein.
Appears in 1 contract
Assistance with Financing. (a) The Seller Parties acknowledge that Company agrees to use commercially reasonable efforts to provide, and the Buyer Parties intend to pursue the Anticipated Financing and agree to provide such assistance (and Company shall use commercially reasonable efforts to cause its Subsidiaries and its and their respective Representatives to provide such assistance) provide, upon the reasonable request of Parent, and at Parent’s sole cost and expense, all commercially reasonable cooperation in connection with the Financing arrangement of the New Note Offering or any other Financing, including, as is applicable, the financings and the asset based lending facility contemplated in the Commitment Letter (including the amendment or restatement of the Parent’s existing asset based lending facility) (collectively, the “Applicable Financings”) in connection with the transactions contemplated hereby, including:
(i) as promptly as reasonably practical: (A) furnishing Parent, its financing sources and their respective Representatives with the Required Information and such financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent (including in connection with Parent’s preparation of pro forma financial statements), and (B) informing Parent if the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere with Company or any of its Affiliates has knowledge of any facts which could reasonably be expected to require the ongoing operations restatement of the Seller Parties). Such assistance by financial statements described in the Seller Parties shall include the following foregoing clause (A) for such financial statements to the extent reasonably requested by the Buyer Parties comply with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; GAAP;
(ii) assisting in preparation for and participation in marketing efforts (including a reasonable number of meetings and assistance calls), drafting sessions, rating agency presentations, road shows and accounting and other due diligence sessions (including using commercially reasonable efforts to cause the Company’s and/or its Subsidiaries’, as applicable, independent auditors to participate therein and to otherwise cooperate with the reasonable requests of Parent and Debt Providers) and sessions with prospective lenders, investors and ratings agencies and assisting Parent in obtaining ratings as contemplated by the Applicable Financing;
(iii) assisting Parent with the preparation of materials for rating agency presentations presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and meetings similar documents for the Applicable Financing, including the execution and delivery of customary representation letters in connection with rating agencies; bank information memoranda;
(iiiiv) delivery to providing appropriate representations in connection with the Buyer Parties preparation of financial statements and their financing sources other financial data of the Financing InformationCompany and its Subsidiaries, including: requesting accountants’ consents in connection with the use of the Company’s and its Subsidiaries’ (vor previously acquired entities’) the financial statements contemplated by Section 5.11in offering documents, (w) such prospectuses and other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC documents to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC and using commercially reasonable efforts to cause its independent auditors (and independent auditors of previously acquired entities, should such auditors have audited financial statements to be included in such offerings documents, prospectuses or other documents to be filed with the SEC) to issue comfort letters to the Debt Providers and other financing sources providing the Applicable Financing in a form (including as to negative assurance and change period) customarily received by underwriters or initial purchasers of debt securities, as the case may be;
(v) assisting, and using commercially reasonable efforts to cause its independent auditors to assist, Parent in connection with the Financing preparation of pro forma financial information and financial statements to the extent required by SEC rules and regulations or that is necessary (or reasonably required by Parent’s financing sources (including the Debt Providers)) to be included in any offering documents;
(vi) providing monthly and quarterly financial reports consistent with the Company’s and its Subsidiaries’ past practice;
(vii) executing and delivering as of the type Closing any pledge and form customarily included security documents, legal opinions, other definitive financing documents, or incorporated other certificates or documents as may be reasonably requested by reference in private placement memoranda pursuant to Rule 144A/Regulation S Parent (including customary evidence of insurance and a certificate of the Securities Act used chief financial officer of the Company or any of its Subsidiaries with respect to solvency matters in the form set forth as an annex to the Commitment Letter) and otherwise facilitating the pledging of collateral (including cooperation in connection with the Financing; (x) information regarding the tenants in the Target Properties that is pay-off of the type Funded Indebtedness and form customarily included the release of related Liens and termination of security interests and cooperation in securitizations connection with Parent’s efforts to obtain environmental assessments and title insurance);
(viii) providing commercially reasonable assistance to Parent to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and Contracts to which the Company or any of mortgage loans which are secured by commercial propertiesits Subsidiaries is a party and, upon reasonable advance notice, to arrange discussions, during normal business hours and without undue interruption to the Company’s and its Subsidiaries’ businesses, among Parent, the Debt Providers and their respective Representatives with other parties to material leases, encumbrances and Contracts as of the Closing;
(yix) any existing third-party reports regarding taking all commercially reasonable actions necessary to (A) permit Parent’s financing sources (including the Target Properties Debt Providers) to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations and (zB) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement establish bank and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management other accounts and blocked account agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely lock box arrangements to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Applicable Financing; provided, however, that, notwithstanding anything ;
(x) assisting the Debt Providers in obtaining field examinations and appraisals prior to the contrary Closing Date and assisting in this Agreementthe preparation and delivery of a customary “borrowing base certificate” on or prior to the Closing Date;
(xi) taking all corporate actions, (A) without subject to the prior written consent occurrence of the Seller PartiesClosing, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions Parent that are in necessary or customary to permit the control consummation of the Seller Parties. The Seller Parties will provide Applicable Financing, including any high yield debt financing; and
(xii) providing at least five Business Days prior to the Buyer Parties Closing Date all documentation and other information about the Financing Sources such information within their (or their controlling Affiliates’) possession or control Company and its Subsidiaries as may be reasonably necessary so that is required by applicable “know your customer” and anti-money laundering rules and regulations including without limitation the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10USA PATRIOT Act.
(b) Notwithstanding anything the foregoing, nothing in this Agreement shall require any such cooperation to the contrary extent that it would (i) require the Company or any of its Subsidiaries to enter into any financing, purchase or other agreement for the Applicable Financing that would be effective prior to the Closing or (ii) result in this Agreementany officer, none director or manager or other Representative of the Seller Parties Company or their Affiliates any of its Subsidiaries incurring any personal liability with respect to any matters relating to the Applicable Financing. Neither the Company nor any of its Subsidiaries shall be required to pay or commit to pay any cash commitment or other consideration, make any accommodation or commitment or incur any liability or other obligation fees in connection with the obligations of Financing prior to the Seller Parties under Section 5.10(a) or otherwise in connection with Closing, and the Financing, other than reasonable out-of-pocket costs. The Buyer Parties Company and its Subsidiaries shall promptly, upon request be reimbursed by the Seller Parties, reimburse the Seller Parties Parent for all any reasonable and documented out-of-pocket costs and expenses incurred or otherwise payable by any Seller Party the Company or any of their respective Affiliates or Representatives for any action taken its Subsidiaries in connection with the cooperation contemplated by any of them at the request of the Buyer Parties or the Financing Sources pursuant to this Section 5.10(a), and 6.6. Parent shall indemnify and hold harmless the Seller Parties Company and their respective its Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) Liabilities suffered or incurred by any of them (i) in connection with the arrangement of the Applicable Financing and any information used or Alternate Financing (including actions taken in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representativesaccordance with this Section 6.6), except (iix) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court that such Liabilities arise out of competent jurisdiction to have arisen or result from the fraud, gross negligence, any willful misconduct or bad faith of the Company or any of its Affiliates or any Representatives of any of the Seller Parties foregoing or (y) to the extent of amounts paid in settlement of any such Liability if such settlement is effected without the consent of their Affiliates Parent (which consent shall not be unreasonably withheld or Representativesdelayed).
(c) All non-public or other confidential information The Company shall use commercially reasonable efforts to periodically update any Required Information provided by to Parent as may be necessary so that such Required Information (i) is Compliant, (ii) meets the Seller Parties pursuant applicable requirements set forth in the definition of “Required Information” and (iii) would not, after giving effect to such update(s), result in the Marketing Period to cease to be deemed to have commenced. For the avoidance of doubt, Parent may, in order to most effectively access the financing markets, require the reasonable cooperation of the Company under this Agreement Section 6.6 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing; provided, that, for the avoidance of doubt, the Marketing Period shall not be kept confidential applicable as to each attempt to access the markets.
(d) The Company hereby consents to the use of the Company’s and its Subsidiaries’ logos in accordance connection with the Confidentiality AgreementApplicable Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources Company or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with its Subsidiaries or the Financing, (ii) to rating agencies in connection with obtaining ratings reputation or goodwill of the Financing and (iii) to the extent required by applicable securities laws Company or as otherwise is customary in private offerings any of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference thereinits Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Cott Corp /Cn/)
Assistance with Financing. From the date of this Agreement until the earlier of the Closing and the date on which this Agreement is terminated in accordance with Section 7.1 (a) The Seller Parties acknowledge that the Buyer Parties intend Termination Events), Sellers will, will cause each of their Subsidiaries to, and will use their commercially reasonable efforts to pursue the Anticipated Financing cause each of their and agree their Subsidiaries' agents and representatives to, use their respective commercially reasonable efforts to provide such assistance (and to cause their respective Representatives to provide such assistance) Buyers with all reasonable cooperation requested by Buyers that is customary in connection with the Financing arrangement of debt financing reasonably proposed by Buyers, including (i) making senior management of the Transferred Companies reasonably available for a reasonable number of customary meetings or conference calls with lenders or rating agencies at times and locations as is are mutually agreed, (ii) furnishing, to the extent reasonably available, (A) all financial statements and financial and other material information that are reasonably required and requested in connection with the financing and (B) all documentation and other information with respect to the Transferred Companies reasonably required and requested in connection with the financing under applicable “know your customer” and anti-money laundering rules and regulations to the extent requested at least ten (10) Business Days in advance of the Closing, (iv) assisting Buyers and their financing sources in the preparation of all customary information memoranda, lender presentations, rating agency presentations, and similar documents reasonably required in connection with the financing, (v) reasonably cooperating with the marketing efforts of Buyers and their financing sources for the financing, and (vi) reasonably cooperating with and assisting Buyers in connection with the execution and delivery of, as of the Effective Time of Closing, any pledge and security documents, other definitive financing documents, or other customary certificates or documents required to be delivered in connection with the financing on such date as may be reasonably requested by Buyers and otherwise reasonably facilitating the Buyer Parties (pledging of collateral required in connection with the financing; provided, however, that (x) such requested assistance cooperation does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and Sellers or their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial propertiesSubsidiaries, (y) any existing third-party reports regarding the Target Properties all costs incurred by or on behalf of Sellers and their Subsidiaries in connection with such cooperation will be at Buyers' sole cost and expense, and (z) any rent rollsnone of Sellers, schedules of tenant security depositstheir Subsidiaries, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (Sellers' or their controlling Affiliates’) possession Subsidiaries' respective agents or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash commitment or other considerationsimilar fee, make any accommodation or commitment or incur any liability or other obligation Liability, in connection with the obligations of the Seller Parties under Section 5.10(aBuyers' financing. Buyers will (i) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller PartiesSellers, reimburse the Seller Parties Sellers, their Subsidiaries, and their respective agents and representatives for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys' fees) incurred by any Seller Party or any of Sellers, their Subsidiaries, and their respective Affiliates or Representatives for agents and representatives in connection with any action taken cooperation contemplated by any of them at the request of the Buyer Parties or the Financing Sources pursuant to this Section 5.10(a), 5.21(b) and shall (ii) indemnify and hold harmless the Seller Parties each of Sellers, their Subsidiaries, and Sellers' and their Subsidiaries' respective Affiliates agents and Representatives representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) Liabilities suffered or incurred by any of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or RepresentativesBuyers' financing.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein.
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