Financing Matters. (a) Match shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to obtain, as promptly as practicable after the date hereof, additional financing commitments under the Existing Match Facility or otherwise in an aggregate amount not less than $100,000,000 (the “Credit Facility Upsize”). (b) Prior to the Reclassification Effective Time, Match shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, including, if necessary, by (i) obtaining debt financing from third parties (any such financing, “Debt Financing”), (ii) incurring loans under the Existing Match Facility including pursuant to the Credit Facility Upsize, (iii) entering into amendments or modifications or obtaining consents or waivers in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its Group, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause their Representatives to, provide to Match such customary cooperation as may be reasonably requested by Match to assist Match in arranging Debt Financing; provided that (A) no such cooperation shall be required to the extent that it would (1) require any member of the IAC Group to incur any fee, expense or other liability prior to the Match Merger Effective Time for which it is not promptly reimbursed or indemnified by Match or (2) be reasonably expected to cause any director, officer or employee of any member of the IAC Group to incur any personal liability and (B) Merger Sub shall not be required to enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing (other than the execution of customary authorization and representation letters). (c) Prior to the Closing, IAC may enter into agreements with one or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (or New Match Common Stock), or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon the Match Merger Effective Time, (the “IAC Class M Equity Offering”), and providing for customary registration rights with respect to the related shares of IAC Class M Common Stock (or New Match Common Stock); provided, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require Match’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expense, in connection with the arrangement, execution and settlement of the IAC Class M Equity Offering as reasonably requested by IAC. Such assistance shall include, but not be limited to: (i) facilitating and participating in a reasonable number of meetings, presentations, roadshows, due diligence sessions, and any other sessions with prospective investors, in each case at reasonable times and locations mutually agreed; and (ii) facilitating and otherwise providing for the settlement of the securities sold pursuant to the IAC Class M Equity Offering in accordance with the applicable requirements set forth in any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) the provision of information as reasonably required in connection with any applicable disclosure document and assistance in obtaining customary representation letters, comfort letters, or similar instruments. (d) Immediately following the closing of the IAC Class M Equity Offering, New Match shall transfer to New IAC any and all proceeds it receives pursuant to the IAC Class M Equity Offering.
Appears in 2 contracts
Sources: Joinder and Reaffirmation Agreement (Match Group, Inc.), Transaction Agreement (Match Group, Inc.)
Financing Matters. (a) Match shall use its reasonable best efforts Purchaser has had discussions with one or more banks, financial institutions or other public or private financing sources (the "Lending Sources") to takedetermine the available terms of financing and reasonably expects that such commitments regarding junior or subordinated debt financing, together with equity contributions to the Purchaser made or cause to be takenmade by certain stockholders of the Purchaser (collectively, the "Commitments"), sufficient to consummate the transactions contemplated by the Merger Agreement, will be obtainable from such Lending Sources and stockholders of the Purchaser, as the case may be. The Company acknowledges that the Lending Sources have not had the opportunity to complete due diligence on all actionsaspects of the Company's operations, agreements and finances, including with respect to the Company's operations for the period ended December 30, 2000, and that the results of such investigation may result in the Commitments being unavailable or available only in amounts and on terms not acceptable to do, or cause to be done, all things necessary or advisable to obtain, as promptly as practicable after the date hereof, additional financing commitments under the Existing Match Facility or otherwise in an aggregate amount not less than $100,000,000 (the “Credit Facility Upsize”)Purchaser.
(b) Prior The Company agrees to provide, and will cause its Subsidiaries and its and their respective officers, employees and advisors to provide, all cooperation reasonably necessary in connection with the Reclassification arrangement of any financing to be consummated contemporaneously with or at or after the expiration of the Effective TimeTime in respect of the transactions contemplated by this Agreement, Match shall use its reasonable best efforts to takeincluding participation in meetings and, due diligence sessions, the execution and delivery of any commitment letters, underwriting or placement agreements, pledge and security documents, other definitive financing documents, or cause to be takenother requested certificates or documents, all actionsincluding a certificate of the chief financial officer of the Company, comfort letters of accountants and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, including, if necessary, by (i) obtaining debt financing from third parties (any such financing, “Debt Financing”), (ii) incurring loans under the Existing Match Facility including pursuant to the Credit Facility Upsize, (iii) entering into amendments or modifications or obtaining consents or waivers in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its Group, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause their Representatives to, provide to Match such customary cooperation legal opinions as may be reasonably requested by Match Purchaser and taking such other actions as are reasonably required to assist Match be taken by the Company in arranging Debt Financing; the Commitments, provided that (A) no Purchaser shall use reasonable efforts not to materially interfere with the duties of such cooperation shall be required to officers, employees and advisors such that the extent that it would (1) require any member Company's business and results of the IAC Group to incur any fee, expense or other liability prior to the Match Merger Effective Time for which it is not promptly reimbursed or indemnified by Match or (2) be reasonably expected to cause any director, officer or employee of any member of the IAC Group to incur any personal liability and (B) Merger Sub shall not be required to enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that operations would be effective prior to the Closing (other than the execution of customary authorization and representation letters)materially adversely affected thereby.
(c) Prior The Company has entered into or agrees to the Closing, IAC may enter into agreements with one or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (or New Match Common Stock), or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon the Match Merger Effective Time, engagement letter agreement (the “IAC Class M Equity Offering”)"▇▇▇▇▇ Engagement Letter") among ▇▇▇▇▇ Associates Incorporated, LEG Partners III SBIC, L.P., LEG Partners Debentures SBIC, L.P. the Purchaser and providing for customary registration rights with respect to the related shares of IAC Class M Common Stock (or New Match Common Stock); provided, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require Match’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expense, in connection with the arrangement, execution and settlement of the IAC Class M Equity Offering as reasonably requested by IAC. Such assistance shall include, but not be limited to: (i) facilitating and participating in a reasonable number of meetings, presentations, roadshows, due diligence sessions, and any other sessions with prospective investors, in each case at reasonable times and locations mutually agreed; and (ii) facilitating and otherwise providing for the settlement of the securities sold pursuant to the IAC Class M Equity Offering in accordance with the applicable requirements set forth in any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) the provision of information as reasonably required in connection with any applicable disclosure document and assistance in obtaining customary representation letters, comfort letters, or similar instrumentsCompany.
(d) Immediately following Notwithstanding anything to the closing contrary contained in this Agreement, the Company shall not enter into any Commitments or any other letters, agreements or other documents contemplated by Sections 4.16(b), 4.16(c) or 5.2(f) if, in the aggregate, such Commitments, letters, agreements or other documents obligate the Company to pay more than $400,000.00 of fees, costs and expenses (excluding contingent liabilities such as indemnification obligations), without the prior consent of the IAC Class M Equity Offering, New Match shall transfer to New IAC any and all proceeds it receives pursuant to the IAC Class M Equity OfferingSpecial Committee.
Appears in 2 contracts
Sources: Merger Agreement (Specialty Acquisition Corp), Agreement and Plan of Recapitalization and Merger (Specialty Catalog Corp)
Financing Matters. (a) Match From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its term, the Company shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause its Representatives to, provide, at Parent’s sole expense, such customary cooperation and customary and readily available financial information and data, in each case, that is reasonably requested by Parent in connection with any debt financing (explicitly excluding, for the avoidance of doubt, the Parent Funding) obtained by Parent or any of its Subsidiaries for the purpose of financing the transactions contemplated hereby (any such debt financing, a “Debt Financing”) (it being understood that the receipt of any such Debt Financing is not a condition to the Merger or any of the other transactions contemplated hereby); provided, however, that no such cooperation shall be required to the extent it would (i) unreasonably disrupt or interfere with the conduct of the Company’s business, (ii) require the Company or any of its Subsidiaries to incur any fees, expenses or other liability prior to the Effective Time for which it is not promptly reimbursed, (iii) require any director, officer or employee of the Company or any of its Subsidiaries to deliver, or be required to deliver, any certificate or take any action that would reasonably be expected to result in any personal liability, (iv) require the Company to waive or amend any terms of this Agreement, (v) require the Company or any of its Subsidiaries to provide any information that is prohibited or restricted by applicable Law or is privileged and disclosure of which would result in a loss of such privilege, (vi) require the Company or any of its Subsidiaries to prepare or deliver any financial statements other than any such financial statements that are required to be prepared and delivered by the Company pursuant to Section 5.2, (vii) require the Company or any of its Subsidiaries to enter into, amend or modify any agreement or commitment that would not be conditioned on the occurrence of, or would be effective prior to, the Effective Time (other than customary authorization and representation letters) or (viii) require the Company or any of its Subsidiaries, or any of their respective directors, managers or officers, to take any action to authorize any formal corporate or similar action with respect to the Debt Financing that is not subject to the occurrence of the Effective Time; provided, further, however, that (A) Parent covenants and agrees that any offering documents, lender and investor presentations, rating agency presentations, bank information memoranda or other marketing materials in connection with any Debt Financing contemplated by this Section 5.12(a) shall contain disclosures and disclaimers exculpating the Company and its Subsidiaries and their respective directors and officers with respect to any liability related to the contents or use thereof by the recipients thereof, and (B) notwithstanding any other provision set forth herein, nothing herein shall require any director, manager or officer of the Company or any of its Subsidiaries who will not continue to hold such position following the Effective Time to execute any resolution(s) or written consent(s), or any certification, instrument or agreement, in connection with the any financing contemplated by this Section 5.12(a). Notwithstanding anything to the contrary set forth herein, neither any breach or violation by the Company of, or any failure by the Company to comply with, this Section 5.12(a), nor any failure of Parent to obtain any Debt Financing contemplated by this Section 5.12(a) (regardless of whether or not the Company shall have complied with its obligations under this Section 5.12(a)), shall (i) be deemed a breach or violation by the Company of, or a failure by the Company to comply with, this Agreement for any purpose, (ii) be deemed a failure by the Company to perform and comply in all material respects with its covenants under this Agreement for the purposes of Section 6.3(b) or (iii) permit Parent to terminate this Agreement pursuant to Section 7.1(f) or otherwise, unless in each case such breach, violation or failure by the Company is a Willful and Material Breach and directly causes the Debt Financing not to be obtained.
(b) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and to do, or cause to be done, all things necessary necessary, proper or advisable to obtain, as promptly as practicable after obtain the date hereof, additional financing commitments under proceeds of the Existing Match Facility Parent Funding at or otherwise in an aggregate amount not less than $100,000,000 (the “Credit Facility Upsize”).
(b) Prior prior to the Reclassification Effective TimeTime on the terms and conditions set forth in the Subscription Agreement, Match shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, including, if necessary, by including (i) obtaining debt financing from third parties (any such financing, “Debt Financing”)complying with and performing all of its obligations under the Subscription Agreement that arise prior to the Effective Time, (ii) incurring loans under maintaining the Existing Match Facility including pursuant to Subscription Agreement in full force and effect in accordance with its terms until the Credit Facility Upsizeearlier of the Effective Time and the termination of this Agreement in accordance with its terms, (iii) entering into amendments or modifications or obtaining consents or waivers satisfying on a timely basis all conditions to the Parent Funding set forth in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its GroupSubscription Agreement, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause their Representatives to, provide to Match such customary cooperation as may be reasonably requested by Match to assist Match in arranging Debt Financing; provided that (A) no such cooperation shall be required to the extent that it would (1) require any member of the IAC Group to incur any fee, expense or other liability prior to the Match Merger Effective Time for which it is not promptly reimbursed or indemnified by Match or Time, enforcing each of its rights under the Subscription Agreement (2) be reasonably expected including, the right to cause any director, officer or employee seek specific performance of any member each of the IAC Group Investor’s obligations under the Subscription Agreement pursuant to incur any personal liability Section 9.21(a) of the Subscription Agreement) and (Bv) Merger Sub shall not be required to enter into, execute, consummating the Parent Funding at or approve any agreement or other documentation prior to the Closing Effective Time, including by enforcing its rights under the Subscription Agreement to cause the funding of the Parent Funding at or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing Effective Time (other than including, the execution right to seek specific performance of customary authorization and representation letterseach Investor’s obligation to fund a portion of the Parent Funding pursuant to Section 9.21(b) of the Subscription Agreement).
(c) Prior Except to the Closingextent specifically provided in Section 1.1(c) and Section 1.1(d) of the Subscription Agreement, IAC may enter into agreements with one Parent shall not replace, amend, supplement, modify, terminate or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (waive the Subscription Agreement or New Match Common Stock), or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon any provision thereof without the Match Merger Effective Time, (the “IAC Class M Equity Offering”), and providing for customary registration rights with respect to the related shares of IAC Class M Common Stock (or New Match Common Stock); provided, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require MatchCompany’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expense, in connection with the arrangement, execution and settlement of the IAC Class M Equity Offering as reasonably requested by IAC. Such assistance shall include, but not be limited to: (i) facilitating and participating adds any new conditions (or modifies in a reasonable number manner adverse to Parent any existing condition) to the consummation of meetingsthe Parent Funding, presentations, roadshows, due diligence sessions, and any other sessions with prospective investors, in each case at reasonable times and locations mutually agreed; and (ii) facilitating and otherwise providing for reduces the settlement amount of the securities sold pursuant Parent Funding, (iii) adversely affects the ability of Parent to enforce its rights against the Investors or the Subscription Agreement, (iv) adversely affects the rights of the Company as a third party beneficiary of the Subscription Agreement, (v) adversely affects the rights or ability of the Company to specifically enforce the obligations of the Investors under the Subscription Agreement, to the IAC Class M Equity Offering extent provided in accordance with Section 9.20 of the applicable requirements Subscription Agreement or (vi) would reasonably be expected to prevent or materially impair the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing and notwithstanding anything to the contrary set forth in the Subscription Agreement, in no event shall Parent consent to or permit (including by amendment, waiver or otherwise) any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) assignment, reduction or novation of any commitment of any Investor under the provision of information as reasonably required in connection with any applicable disclosure document and assistance in obtaining customary representation letters, comfort letters, or similar instrumentsSubscription Agreement.
(d) Immediately following the closing of the IAC Class M Equity Offering, New Match shall transfer to New IAC any and all proceeds it receives pursuant to the IAC Class M Equity Offering.
Appears in 1 contract
Financing Matters. (a) Match From the date of this Agreement until the Effective Time, Company on the one hand and Parent on the other shall, and shall cause their respective Subsidiaries to, use its reasonable best efforts to takecooperate with the other as reasonably requested by the other in connection with obtaining or refinancing any debt financing of the other and its Affiliates, or cause including by using reasonable best efforts to (a) furnish financial and other pertinent information of Company and its Subsidiaries in the case of Company and Parent and its Subsidiaries in the case of Parent to the providers of such debt financing solely to the extent necessary to show the pro forma impact of the transactions contemplated by this Agreement on them, (b) cooperate with the creation and perfection of pledge and security instruments effective as of the Effective Time and (c) provide pertinent information of Company and its Subsidiaries in the case of Company and Parent and its Subsidiaries in the case of Parent that is required in connection with the applicable debt financing under applicable “know your customer” and anti-money laundering rules and regulations and has been requested in writing at least ten Business Days prior to the Effective Time; provided that such party shall be taken, all actions, and reimbursed for any reasonable out-of-pocket costs incurred by such party in connection with such cooperation with respect to do, or cause to be done, all things necessary or advisable to obtain, as promptly as practicable after the date hereof, additional financing commitments under the Existing Match Facility or otherwise in an aggregate amount not less than $100,000,000 (the “Credit Facility Upsize”)other party’s debt financing.
(b) Prior Notwithstanding anything to the Reclassification Effective Timecontrary contained in Section 6.17(a), Match nothing in this Section 6.17 shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, including, if necessary, by (i) obtaining debt financing from third parties (require any such financing, “Debt Financing”), (ii) incurring loans under the Existing Match Facility including pursuant to the Credit Facility Upsize, (iii) entering into amendments or modifications or obtaining consents or waivers in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its Group, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause their Representatives to, provide to Match such customary cooperation as may be reasonably requested by Match to assist Match in arranging Debt Financing; provided that (A) no such cooperation shall be required to the extent that it would (1i) require the parties hereto or any member of their respective Subsidiaries or their respective Representatives, as applicable, to waive or amend any terms of this Agreement, (ii) unreasonably interfere with the ongoing business or operations of such party or any of its Subsidiaries, (iii) require a party or any of its Subsidiaries to take any action that will conflict with or violate the organizational documents of such party or any Laws or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any Parent Material Contract or Company Material Contract, as the case may be, (iv) encumber any of the IAC Group to incur assets of such party or any feeof its Subsidiaries or otherwise be an issuer, expense guarantor or other liability obligor with respect to such debt financing prior to the Match Merger Effective Time for which it is not promptly reimbursed or indemnified by Match or (2) be reasonably expected to cause any director, officer or employee of any member of the IAC Group to incur any personal liability and (B) Merger Sub shall not be required to enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing (other than the execution of customary authorization and representation letters).
(c) Prior to the Closing, IAC may enter into agreements with one or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (or New Match Common Stock), or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon the Match Merger Effective Time, (the “IAC Class M Equity Offering”)v) require a party or any of its Subsidiaries to pay, and providing for customary registration rights with respect or commit to the related shares of IAC Class M Common Stock (pay, any commitment or New Match Common Stock); providedother fee or make any other payment, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require Match’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expenseeach case, in connection with such debt financing prior to the arrangementEffective Time, execution and settlement (vi) require a party or any of the IAC Class M Equity Offering as reasonably requested by IAC. Such assistance shall includeits Subsidiaries to incur, but not or commit to incur, or be limited to: (i) facilitating and participating in a reasonable number of meetingsrequired to reimburse, presentationsor commit to reimburse, roadshowsany cost, due diligence sessionsexpense, and liability or obligation or provide or agree to provide any other sessions with prospective investorsindemnity, in each case at reasonable times and locations mutually agreed; and (ii) facilitating and otherwise providing for the settlement of the securities sold pursuant to the IAC Class M Equity Offering in accordance with the applicable requirements set forth in any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) the provision of information as reasonably required case, in connection with such debt financing prior to the Effective Time, (vii) require a party or any applicable disclosure document and assistance in obtaining customary representation lettersof its Subsidiaries to take any action that could subject any director, comfort lettersofficer, employee, agent, manager, consultant, advisor or other representative of such party or any of its Subsidiaries to any actual or potential personal liability, (viii) provide any information regarding any post-Effective Time or pro forma cost savings, synergies, capitalization, ownership or other post-Effective Time pro forma adjustments, or prepare any pro forma financial statements or other post-Effective Time financial information, (ix) require a party or any of its Subsidiaries to provide access to or disclose information that such party determines in good faith could jeopardize any attorney client privilege of, or conflict with any confidentiality obligations binding on, such party or any of its Subsidiaries, (x) deliver any financial or other information that is not currently readily available or prepared in the ordinary course of business consistent with past practice of such party and its Subsidiaries at the time requested by the other party or (xi) require a party or any of its Subsidiaries to enter into or approve any financing, pledge, security or similar instruments.
(d) Immediately following agreement, or any other agreement, certificate or other document related to such debt financing in connection with the closing of the IAC Class M Equity Offering, New Match shall transfer to New IAC any and all proceeds it receives pursuant foregoing prior to the IAC Class M Equity OfferingEffective Time. Nothing in this Section 6.17 shall permit a party or any of its Subsidiaries to take any action otherwise prohibited by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Seadrill LTD)
Financing Matters. (a) Match From the date of this Agreement until the Effective Time, the parties shall, and shall use its cause their Subsidiaries to, cooperate with one another as reasonably requested by any other party hereto in connection with obtaining or refinancing any debt financing of Parent, Company or their Affiliates, including by using reasonable best efforts to take(i) furnish financial and other pertinent information of Parent, Company or cause their Subsidiaries necessary to be takenshow the pro forma impact of the transactions contemplated by this Agreement on Parent, all actions, Company and to do, or cause to be done, all things necessary or advisable to obtainits Subsidiaries, as promptly applicable, (ii) cooperate with the creation and perfection of pledge and security instruments effective as practicable after of the date hereofEffective Time and (iii) provide pertinent information of Parent, additional Company and their Subsidiaries in connection with the applicable debt financing commitments (1) required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations or (2) as may otherwise be reasonably requested and customarily needed for refinancings or debt financings of the Existing Match Facility or otherwise type contemplated; provided that such party shall be reimbursed for any reasonable out-of-pocket costs incurred by such party in an aggregate amount not less than $100,000,000 (connection with such cooperation with respect to the “Credit Facility Upsize”)other party’s debt financing.
(b) Prior Notwithstanding anything to the Reclassification Effective Timecontrary contained in Section 6.15(a), Match nothing in this Section 6.15 shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, including, if necessary, by (i) obtaining debt financing from third parties (require any such financing, “Debt Financing”), (ii) incurring loans under the Existing Match Facility including pursuant to the Credit Facility Upsize, (iii) entering into amendments or modifications or obtaining consents or waivers in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its Group, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause their Representatives to, provide to Match such customary cooperation as may be reasonably requested by Match to assist Match in arranging Debt Financing; provided that (A) no such cooperation shall be required to the extent that it would (1i) require the parties hereto or any member of their respective Subsidiaries or their respective Representatives, as applicable, to waive or amend any terms of this Agreement, (ii) unreasonably interfere with the IAC Group ongoing business or operations of such party or any of its Subsidiaries, (iii) require a party or any of its Subsidiaries to incur take any feeaction that will conflict with or violate the organizational documents of such party or any Laws or result in the contravention of, expense or other liability prior that would reasonably be expected to result in a violation or breach of, or default under, any Parent Material Contract or Company Material Contract, as the Match Merger Effective Time for which it is not promptly reimbursed or indemnified by Match case may be, or (2iv) be reasonably expected to cause require a party or any director, officer or employee of any member of the IAC Group to incur any personal liability and (B) Merger Sub shall not be required its Subsidiaries to enter into, execute, into or approve any financing, pledge, security or similar agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing (other than the execution of customary authorization and representation letters).
(c) Prior to the Closing, IAC may enter into agreements with one or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (or New Match Common Stock), or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon the Match Merger Effective Time, (the “IAC Class M Equity Offering”), and providing for customary registration rights with respect to the related shares of IAC Class M Common Stock (or New Match Common Stock); provided, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require Match’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expense, in connection with the arrangement, execution and settlement of the IAC Class M Equity Offering as reasonably requested by IAC. Such assistance shall include, but not be limited to: (i) facilitating and participating in a reasonable number of meetings, presentations, roadshows, due diligence sessions, and any other sessions with prospective investors, in each case at reasonable times and locations mutually agreed; and (ii) facilitating and otherwise providing for the settlement of the securities sold pursuant foregoing prior to the IAC Class M Equity Offering in accordance with the applicable requirements set forth in any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) the provision of information as reasonably required in connection with any applicable disclosure document and assistance in obtaining customary representation letters, comfort letters, or similar instrumentsEffective Time.
(d) Immediately following the closing of the IAC Class M Equity Offering, New Match shall transfer to New IAC any and all proceeds it receives pursuant to the IAC Class M Equity Offering.
Appears in 1 contract
Sources: Merger Agreement (Dril-Quip Inc)
Financing Matters. (a) Match At the request of Purchaser, Seller shall cause the Group Companies (and their applicable Subsidiaries to) (i)(A) deliver notices of prepayment (which shall only be required to be delivered in advance of the Closing Date if they are contingent upon and do not become effective until the occurrence of the Closing) in respect of any Indebtedness of the Company or any of its Subsidiaries specified by Purchaser within the time periods reasonably requested by Purchaser (it being understood and agreed that any prepayment shall be contingent upon and shall not become effective until the occurrence of the Closing and, notwithstanding anything in this Section 5.21 to the contrary, no actions shall be required which would obligate any Group Company to complete such prepayment prior to the occurrence of the Closing) and (B) arrange for, and deliver to Purchaser on or prior to the Closing Date (it being understood and agreed that commercially reasonable efforts will be used to deliver drafts of such documents to Purchaser no later than five (5) Business Days prior to the Closing Date), customary payoff letters, terminations of commitments, lien terminations, releases and instruments and acknowledgements of discharge (along with authorizations to file or record any of the foregoing), in each case in respect of such Indebtedness and (ii) use its commercially reasonable best efforts to taketake any reasonable actions as may be required in connection with the purchase and sale of the Shares to facilitate the continuation of amounts outstanding in respect of any such Indebtedness specified by Purchaser following the Closing, or cause including the preparation of, and the execution and delivery of, supplemental indentures, officers’ certificates, notices and legal opinions (which shall only be required to be taken, all actions, delivered in advance of the Closing Date if they are contingent upon and to do, or cause to be done, all things necessary or advisable to obtain, as promptly as practicable after do not become effective until the date hereof, additional financing commitments under occurrence of the Existing Match Facility or otherwise in an aggregate amount not less than $100,000,000 (the “Credit Facility Upsize”Closing).
(b) Prior to Between the Reclassification Effective Time, Match shall use its reasonable best efforts to take, or cause to be taken, all actions, date of this Agreement and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, includingClosing Date, if necessary, by Purchaser decides to obtain any financing (i) obtaining debt financing from third parties (any such financing, the “Debt Financing”)) from a Financing Source in connection with the transactions contemplated hereby, (ii) incurring loans under Seller shall cause the Existing Match Facility including pursuant Company and its Subsidiaries to the Credit Facility Upsize, (iii) entering into amendments or modifications or obtaining consents or waivers in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its Group, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to provide, and shall use commercially reasonable efforts to cause their respective Representatives toto provide, provide to Match Purchaser such customary cooperation as may be reasonably requested by Match Purchaser to assist Match it in arranging Debt such financing to the extent customary in connection with the arranging of such financing, which such cooperation shall be limited to (if applicable):
(i) furnishing to Purchaser and Financing Sources as promptly as practicable with financial information and other pertinent information regarding the Group Companies as may be reasonably requested (and updated as reasonably requested) by the Purchaser to consummate the contemplated Financing and, if | applicable, is customary included (x) in marketing materials for senior secured and/or unsecured indebtedness (or any documentation or deliverables in connection therewith) or (y) an offering document relating to a private placement of secured and/or unsecured high-yield debt securities under Rule 144A and Regulation S of the Securities Act of 1933, as amended, including data and other information that would be included customarily in such marketing materials and offering document (it being understood that such information would be less in scope than what would otherwise be required in an offering registered with the SEC but will be customary for offerings of the type contemplated), and all information and data that would be reasonably necessary for an investment bank to receive customary (for high yield debt securities) “comfort” (including “negative assurance” comfort) from independent accountants in connection with such offering; provided, that to the extent any information would be unusable under customary practices for such purposes, such information shall be promptly updated with replacements or restatements thereof, or supplements thereto;
(ii) assisting with the preparation of pro forma financial statements of Purchaser or its Affiliates (subject to any modified presentation as may be customary or appropriate for a Rule 144A offering of debt securities), giving effect to the transactions contemplated in this Agreement; provided that (A) neither the Seller nor any Group Company shall be required to prepare any such pro forma financial statements or be responsible in any manner for information related to the proposed debt and equity capitalization that is required for such pro forma financial information and (B) Purchaser shall have the right, at its expense, to engage third party advisors and consultants to assist the Group Companies in providing such assistance;
(iii) participating in a reasonable number of meetings (including, if applicable, customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, any such Financing and senior management, representatives or advisors, with appropriate seniority and expertise, of the Group Companies), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing, in each case at reasonably mutually agreed times, and with reasonable advanced notice;
(iv) assisting with the preparation of materials (including offering documents) for rating agency presentations, roadshow presentations, offering memoranda (including any customary private placement memorandum or prospectus), bank information memoranda and similar documents required in connection with the Financing and otherwise reasonably cooperate in the marketing efforts related to the Financing;
(v) issuing customary representation letters to auditors and using commercially reasonable efforts to obtain consents, customary authorization | letters and customary comfort letters of independent accountants (including “negative assurance” comfort on any interim or stub period financial information but excluding “negative assurance” comfort on any pro forma financial information or pro forma financial statements);
(vi) obtaining legal opinions and negative assurance letters as reasonably requested by Purchaser as necessary and customary for financings similar to the Financing (including any offering or private placement of debt securities pursuant to Rule 144A and Regulation S under the Securities Act); provided that (A) no such cooperation legal opinion shall be required to the extent that it would (1) require any member of the IAC Group to incur any fee, expense or other liability prior be delivered by counsel to the Match Merger Effective Time for which it is not promptly reimbursed or indemnified by Match or (2) be reasonably expected to cause any director, officer or employee of any member of Seller and the IAC Group to incur any personal liability Companies and (B) Merger Sub counsel to the Seller and Group Companies shall not be required to enter intodeliver any legal opinions;
(vii) helping Purchaser procure corporate credit rating and corporate family rating in respect of the relevant issuer, executeborrower or guarantor under the facilities or other debt instruments contemplated by the Financing from Standard & Poor’s Ratings Services (“S&P”), ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) and Fitch Ratings, Inc (“Fitch”), respectively, and public ratings for any of the facilities or notes issued in connection with the Financing from each of S&P, Moody’s and Fitch;
(viii) providing certificates from the Group Companies with respect to the information provided by the Group Companies in any offering memorandum or bank information memorandum used in the Financing;
(ix) delivering (A) with respect each interim quarterly period (other than the fourth fiscal quarter of any fiscal year) following the Group Companies’ fiscal year ended December 31, 2019 and, if applicable, fiscal years ended December 31, 2020 and December 31, 2021, unaudited consolidated statements of financial position, statements of profit or loss and other comprehensive income, statements of changes in equity, cash flows statements and balance sheet for each interim quarterly period for the Group Companies ended at least six (6) weeks following the end of the relevant quarter, (B) if the Closing occurs on or after March 31, 2021, audited consolidated statements of financial position, statements of profit or loss and other comprehensive income, statements of changes in equity, cash flows statements, balance sheet and notes for the fiscal year ended December 31, 2020 and (C) if the Closing occurs on or after March 31, 2022, audited consolidated statements of financial position, statements of profit or loss and other comprehensive income, statements of changes in equity, cash flows statements, balance sheet and notes for the fiscal year ended December 31, 2021, which, in each case, shall fairly present, in all material respects, the financial condition of the Group Companies as of the dates indicated therein and for the periods covered thereby, all in accordance with IFRS; provided that if any such financial information becomes materially inaccurate for purposes of the Financing, then the Group Companies shall promptly deliver replacements or restatements | thereof, or approve supplement such information, such that such information would be deemed materially accurate under customary practice for such Financing (it being understood that such replacement information shall be prepared in accordance with IFRS and that no such replacement information shall be required if such inaccuracies are immaterial or if subsequent financial statements delivered in a timely manner have corrected such inaccuracies in all material respects);
(x) furnishing Purchaser such information as may be reasonably requested under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, Title III of Pub. L. 107-56 (signed into law October 26, 2001) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act;
(xi) cooperating in the reasonable and customary due diligence of the Company and its Subsidiaries (including with respect to United States Office of Foreign Asset Control, sanctions Law, United States Foreign Corrupt Practices Act and cybersecurity matters) by any Financing Sources providing such Financing (or their legal advisors) (it being understood that Seller and the Group Companies shall be given a reasonable amount of time to review and respond to all diligence requests);
(xii) causing the Group Companies to execute and deliver customary definitive financing agreements (including indentures, credit agreements, pledge agreements, security agreements or intercreditor agreements), documents (including facilitating the pledging of collateral to the extent required by the Financing) and certificates to the extent reasonably requested; provided that (A) no such definitive documentation shall be required to be executed or delivered by the Group Companies unless the effectiveness of any definitive documentation executed by the Group Companies is subject to the occurrence of the Closing and (B) the execution and delivery of any such definitive documentation or the availability of any Financing shall not be a condition to Closing or relieve Purchaser from its obligation to consummate the transactions contemplated by this Agreement; and; and
(xiii) delivering quarterly key performance indicators, including, but not limited to, subscriber information, revenue generating unit information, average revenue per customer and churn rate, for each quarterly period of the Group Companies ended at least nine (9) weeks following the end of the relevant quarter;
(c) Nothing in this Section 5.21 will require Seller or any Group Company to (i) engage in any action that would, in the good faith determination of the Company, unreasonably interfere with the business or operations of the Company, (ii) cause any representation or warranty in this Agreement to be breached, (iii) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (iv) | require the Group Companies to provide any information the disclosure of which is prohibited or restricted under applicable Law or any binding agreement with a third party or is legally privileged or consists of attorney work product (provided that (x) no such obligation shall be entered into primarily because of this sentence and (y) the Group Companies shall notify Purchaser of the nature of the information that is not being provided on the basis of such Law, binding agreement, legal privilege or attorney-client privilege solely to the extent the Group Companies is able to do so without violating the applicable obligation or privilege), (v) require the Group Companies to take any action that will conflict with or violate its organizational documents as in effect on the date hereof, any Laws or result in a violation or breach of, or default under, any agreement to which the Group Companies is a party as of the date hereof, (vi) require the Seller, the Group Companies or any Persons who are directors of the Seller or any of the Group Companies to pass resolutions or consents to approve or authorize the execution of the Financing or any other documentation prior to financing of Purchaser in connection with the Closing transactions contemplated by this Agreement or any other matter or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing agreement certificate, document, instrument or agreement, in each case, prior to the Closing, (vii) require the Seller or any of the Group Companies to pay any commitment or other documentation that would be effective similar fee prior to the Closing or incur any other liability or other obligation prior to Closing or have any obligation of the Seller or any of the Group Companies under any agreement, certificate, document or instrument (other than this Agreement) be effective until the execution Closing, (viii) cause any director, officer or employee or stockholder of customary authorization and representation letters)the Seller or any of the Group Companies to incur any personal liability, (ix) provide access to or disclose information that the Seller or any of the Group Companies determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or cause a violation of applicable Law, fiduciary duty or confidentiality obligation, (x) in the reasonable opinion of Seller’s outside counsel, disclose information that would create material risk from an antitrust or competition Law point of view or (xi) disclose information that constitutes a Trade Secret or competitively sensitive information.
(cd) Prior Purchaser shall from time to time, promptly upon request by the Closing, IAC may enter into agreements with one Seller or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (or New Match Common Stock), or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon the Match Merger Effective Timeany Group Company, (i) reimburse Seller and the “IAC Class M Equity Offering”), Group Companies for all reasonable and providing for customary registration rights with respect documented out-of-pocket costs and expenses incurred by Seller or any Group Company (including the reasonable and documented expenses of counsel to Seller and the related shares of IAC Class M Common Stock (or New Match Common Stock); provided, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require Match’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expense, Group Companies solely in connection with the arrangement, execution and settlement financing cooperation contemplated by this Section 5.21) in connection with the financing cooperation contemplated by this Section 5.21 to the extent such costs or expenses are incurred by Seller or any Group Company after the date of the IAC Class M Equity Offering as reasonably requested by IAC. Such assistance this Agreement; provided that Purchaser shall include, but not be limited to: required to reimburse the Seller or any Group Company for any costs and expenses incurred by the Seller or any Group Company with respect to financial statements, financial information or other materials (x) prepared prior to the date hereof that may be used in connection with any financing contemplated by this Section 5.21 or (y) prepared after the date hereof (i) facilitating in connection with the applicable requirements of applicable Law or (ii) in the Ordinary Course of Business (including, for the avoidance of doubt, the financial statements and participating information contemplated by Section 5.21(b)(ix)) (except that Purchaser | shall be required to so reimburse the Seller or any Group Company for (A) modifications to such information that are requested in a writing by the Purchaser and are solely requested in connection with any Financing or (B) reasonable number documented out-of-pocket costs and expenses that are specific to the use of meetings, presentations, roadshows, due diligence sessions, such financial statements or financial information solely in connection with the use thereof by the Purchaser in connection with any Financing and any other sessions with prospective investors, that are requested in each case at reasonable times and locations mutually agreedwriting by the Purchaser; and (ii) facilitating shall indemnify and otherwise providing for hold harmless the settlement of the securities sold pursuant to the IAC Class M Equity Offering in accordance with the applicable requirements set forth in any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) the provision of information as reasonably required in connection with any applicable disclosure document and assistance in obtaining customary representation letters, comfort letters, or similar instruments.
(d) Immediately following the closing of the IAC Class M Equity Offering, New Match shall transfer to New IAC any and all proceeds it receives pursuant to the IAC Class M Equity Offering.S
Appears in 1 contract
Sources: Share Purchase Agreement (Liberty Latin America Ltd.)
Financing Matters. (a) Match Prior to the Closing, Seller shall, and shall cause the Acquired Companies and their respective Representatives to, use their reasonable best efforts, at the sole cost and expense of Purchaser, to cooperate with Purchaser in connection with Purchaser’s arrangement and obtaining of third party debt financing customary for transactions of the type contemplated hereby (the “Debt Financing”) as may be reasonably requested by Purchaser and as is customary for financings of the type contemplated in connection with the Debt Financing, including using reasonable best efforts to:
(i) cause appropriate members of Seller’s and the Acquired Companies’ management teams to participate in a reasonable number of lender meetings and calls and ratings agency presentations (including with respect to prospective lenders and rating agencies), in each case, upon reasonable notice at mutually agreed times and places;
(ii) assist Purchaser with the preparation of customary materials for rating agency presentations, confidential information memoranda and similar documents customary in connection with the Debt Financing;
(iii) provide customary authorization and representation letters;
(iv) reasonably assist Purchaser with Purchaser’s preparation of any definitive documents and the schedules thereto, in each case, customarily required to be delivered for financings of the type contemplated by the Debt Financing, and otherwise reasonably assist in facilitating the pledging of collateral contemplated by the Debt Financing (provided that, the delivery of any possessory collateral of any Acquired Company shall not be required as a condition to the Closing), as may be reasonably requested by Purchaser; and
(v) furnish to Purchaser the Company Financial Statements and other information regarding the Acquired Companies as may be reasonably requested by Purchaser.
(b) Notwithstanding the foregoing or anything else contained herein to the contrary, nothing in this Section 6.15 shall require Seller, the Acquired Companies or any of their respective Affiliates or Representatives (i) to execute or approve any agreements or documents in connection with the Equity Financing or the Debt Financing (other than as expressly set forth in Section 6.15(a)(iii) above) that would be effective prior to the Closing, (ii) to engage in any cooperation that would unreasonably interfere with the normal operations of Seller or the Acquired Companies, (iii) to provide cooperation that Seller reasonably believes would (A) conflict with or result in a violation of any material Contract or any Law, (B) result in the loss of attorney-client privilege or other similar legal privilege, (C) conflict with or violate Seller’s or its Subsidiaries’ organizational documents or (D) cause any of Seller’s representations, warranties, covenants or other obligations in this Agreement to be breached or any condition set forth in Section 7.01 or Section 7.02 to fail to be satisfied, (iv) to approach any third parties prior to the Closing to discuss agreements limiting the rights of such third parties, (v) to consent to the pre-filing of UCC-1s or the grant of liens on Seller’s or its Subsidiaries’ assets prior to the Closing, (vi) to give representations or warranties to any third parties, or the indemnification thereof, by Seller or the Acquired Companies prior to the Closing, (vii) to waive or amend any terms of this Agreement, (viii) to cause any director, officer or employee of Seller or the Acquired Companies to incur any personal liability, (ix) to require the Acquired Companies to enter into any resolutions or take any similar action approving the Equity Financing or the Debt Financing before the Closing (it being understood and agreed that such actions may occur substantially concurrently with the Closing), (x), to deliver any projections, pro forma information or financial statements not otherwise expressly required hereby or in a form or subject to a standard different than those provided to Purchaser on or prior to the date hereof or (xi) to deliver any legal opinions or accountants’ cold comfort letters or reliance letters. Additionally, nothing in this Section 6.15 shall require Seller, the Acquired Companies or any of their respective Affiliates to pay or incur any fee or incur or assume any liability or obligation under or in connection with the Equity Financing or the Debt Financing prior to the Closing (other than as are expressly reimbursable or payable by Purchaser and except for the obligation to deliver the customary authorization and representation letters referenced above). Purchaser agrees that the effectiveness of any documents executed by or on behalf of Seller in connection with the Equity Financing or the Debt Financing shall be subject to, and shall not be effective until, the consummation of the Closing. All non-public or otherwise confidential information regarding Seller, the Acquired Companies or any of their respective Subsidiaries or Affiliates obtained by Purchaser pursuant to this Section 6.15 shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Purchaser will promptly reimburse Seller after written request therefor for any reasonable and documented third-party out-of-pocket expenses incurred or otherwise payable by Seller prior to the Closing in connection with its cooperation pursuant to this Section 6.15.
(c) Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions, actions and to do, or cause to be done, all things necessary reasonably necessary, proper or advisable to obtain, as promptly as practicable after arrange and obtain the date hereof, additional financing commitments under Equity Financing on the Existing Match Facility terms and conditions described in the Equity Commitment Letter on or otherwise in an aggregate amount not less than $100,000,000 (the “Credit Facility Upsize”).
(b) Prior prior to the Reclassification Effective TimeClosing Date, Match shall use its including maintaining in effect the Equity Commitment Letter and using reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, including, if necessary, by (i) obtaining debt financing from third parties (any such financing, “Debt Financing”), (ii) incurring loans under consummate the Existing Match Facility including pursuant to the Credit Facility Upsize, (iii) entering into amendments Equity Financing at or modifications or obtaining consents or waivers in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its Group, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause their Representatives to, provide to Match such customary cooperation as may be reasonably requested by Match to assist Match in arranging Debt Financing; provided that (A) no such cooperation shall be required to the extent that it would (1) require any member of the IAC Group to incur any fee, expense or other liability prior to the Match Merger Effective Time for which it is not promptly reimbursed or indemnified by Match or (2) be reasonably expected to cause any director, officer or employee of any member of the IAC Group to incur any personal liability and (B) Merger Sub shall not be required to enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing (other than the execution of customary authorization and representation letters).
(c) Prior to the Closing, IAC may enter into agreements with one or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (or New Match Common Stock), or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon the Match Merger Effective Time, (the “IAC Class M Equity Offering”), and providing for customary registration rights with respect to the related shares of IAC Class M Common Stock (or New Match Common Stock); provided, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require Match’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expense, in connection with the arrangement, execution and settlement if all of the IAC Class M Equity Offering as reasonably requested by IAC. Such assistance shall include, but not be limited to: (i) facilitating and participating conditions set forth in a reasonable number of meetings, presentations, roadshows, due diligence sessions, and any other sessions with prospective investors, in each case at reasonable times and locations mutually agreed; Article VII have been satisfied and (ii) facilitating and otherwise providing for comply with its obligations under the settlement of the securities sold pursuant to the IAC Class M Equity Offering in accordance with the applicable requirements set forth in any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) the provision of information as reasonably required in connection with any applicable disclosure document and assistance in obtaining customary representation letters, comfort letters, or similar instrumentsCommitment Letter.
(d) Immediately following Purchaser shall give Seller prompt written notice (i) of any breach (or threatened breach) or default (or any event or circumstance that would reasonably be expected to give rise to any breach or default) by Purchaser, or to the closing Knowledge of Purchaser, any party to the Equity Commitment Letter or other definitive agreements with respect thereto, (ii) if and when Purchaser reasonably believes that any portion of the IAC Class M Equity OfferingFinancing contemplated by the Equity Commitment Letter is not reasonably expected to be available on the terms, New Match shall transfer to New IAC in the manner or from the sources contemplated by the Equity Commitment Letter, (iii) of the receipt of any and all proceeds it receives pursuant written notice or other written communication from any party to the IAC Class M Equity OfferingCommitment Letter with respect to any actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letter or other definitive agreements with respect thereto, (iv) of any material dispute or disagreement between or among any parties to the Equity Commitment Letter or any definitive agreements related to the Equity Financing with respect to the obligation to fund the Equity Financing or the amount of the Equity Financing to be funded at the Closing and (v) of any expiration or termination of the Equity Commitment Letter or other definitive agreements with respect thereto. Purchaser shall not, without Seller’s prior written consent, permit or consent to any (1) assignment of the Equity Commitment Letter, (2) amendment, waiver, supplement or modification to be made to the Equity Commitment Letter if such amendment, waiver, supplement or modification would reasonably be expected to (A) materially impair or prevent the consummation of the transactions contemplated hereby, (B) reduce the aggregate amount of the Equity Financing below that required to satisfy all of the Closing Date payment obligations of Purchaser under this Agreement, (C) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Equity Financing, or (D) otherwise materially and adversely affect the ability of Purchaser to consummate the transactions contemplated hereby or would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Closing. In addition to the foregoing, Purchaser shall not release or consent to the termination of the Equity Commitment Letter or of any Equity Financing Source in accordance with the terms of the Equity Commitment Letter prior to the first to occur of the Closing and the expiration or termination of the Equity Commitment Letter in accordance with its terms, except with Seller’s prior written consent.
Appears in 1 contract
Financing Matters. (a) Match Prior to Closing, Buyer shall use its commercially reasonable best efforts to take, obtain debt financing through an expansion of Buyer’s existing credit facility or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to obtain, as promptly as practicable after the date hereof, additional alternative debt financing commitments under the Existing Match Facility or otherwise in an aggregate amount not less than $100,000,000 (the “Credit Facility UpsizeFinancing”).
(b) Prior From the date hereof through the earlier of (x) the Closing Date and (y) termination of this Agreement pursuant to Section 8.1, the Reclassification Effective Time, Match Company shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to maintain or obtain sufficient funds to make the Match Loan, including, if necessary, by (i) obtaining debt financing from third parties (any such financing, “Debt Financing”), (ii) incurring loans under the Existing Match Facility including pursuant to the Credit Facility Upsize, (iii) entering into amendments or modifications or obtaining consents or waivers in relation to agreements governing existing Indebtedness or other financing arrangements of Match or the other members of its Group, or (iv) using the outstanding cash balances of Match or the other members of its Group to make the Match Loan. At Match’s request, the IAC Parties shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause their Representatives to, provide to Match such customary reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Match Buyer in a manner that does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, (i) the Company shall not be required to assist Match in arranging Debt Financing; provided provide, or to cause its Subsidiaries to provide, cooperation under this Section 5.10 that (Ax) no such cooperation causes any representation or warranty in this Agreement to be breached, (y) causes any closing condition set forth in Article VI to fail to be satisfied or otherwise causes the breach of this Agreement or any Contract, or (z) requires the Company, any of its Subsidiaries, or any of their respective pre-Closing directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document or instrument with respect to the Financing that become effective prior to Closing; (ii) none of the Company, any of its Affiliates or any of their respective officers, directors, employees, representatives or agents shall be required to incur any liability or obligation (including any obligation to pay any commitment or other fee) in respect of any assistance provided in connection with the extent Financing (other than any such liability, obligation, commitment or fee that it would is subject to reimbursement or indemnification as set forth below), (1iii) require any member rating agency presentations, bank information memoranda, financing marketing materials or similar documents required or used in connection with the Financing shall contain customary disclosures exculpating the Company and their respective Affiliates with respect to any liability related to the contents or use thereof by the recipients thereof, (iv) the Company and their Affiliates shall not be required to issue any offering document, (v) neither the Company nor any of the IAC their respective Affiliates shall be required to obtain any other consent or any agreement from any other Person that requires any Group Company to incur any fee, expense or other liability prior to the Match Merger Effective Time for which it out-of-pocket cost that is not promptly reimbursed or indemnified by Match as set forth below, (vi) the Company shall not be required to consent to the pre-filing of UCC-1 financing statements or (2) be reasonably expected to cause any director, officer or employee other grant of any member Lien or other encumbrances and (vii) the boards of directors of the IAC Group to incur any personal liability and (B) Merger Sub Company or its respective Affiliates shall not be required to enter intointo any resolutions or take similar action, executein each case, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be becomes effective prior to Closing. All nonpublic or otherwise confidential information regarding the Closing (other than business obtained by Buyer and its financing sources pursuant to this Section 5.10 shall be kept confidential in accordance with the execution of customary authorization and representation letters).
(c) Prior Confidentiality Agreement, except that Buyer shall be permitted to disclose such information to the Closinglender under the Financing and its officers, IAC may enter into agreements with one or more Third Parties pursuant to which IAC agrees to sell shares of IAC Class M Common Stock (or New Match Common Stock)employees, or another security which will represent shares of IAC Class M Common Stock or New Match Common Stock upon the Match Merger Effective Time, (the “IAC Class M Equity Offering”), representatives and providing for customary registration rights with respect to the related shares of IAC Class M Common Stock (or New Match Common Stock); provided, however, that any agreement granting rights to such Third Party that would survive the Match Merger Effective Time shall require Match’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed, it being understood that it shall be unreasonable to withhold, condition or delay consent with respect to customary registration rights); provided, further, that the number of shares sold in the IAC Class M Equity Offering shall not exceed the IAC Class M Equity Offering Cap. Match shall cooperate, and shall cause its Representatives to cooperate, at IAC’s sole cost and expense, advisors in connection with the arrangementFinancing, execution and settlement subject to customary confidentiality provisions. In no event shall the Company be in breach of this Section 5.10 because of the IAC Class M Equity Offering as reasonably failure to deliver any financial or other information that is not currently readily prepared in the Ordinary Course at the time requested by IAC. Such assistance shall include, but not be limited to: (i) facilitating and participating in a reasonable number of meetings, presentations, roadshows, due diligence sessions, and any other sessions with prospective investors, in each case at reasonable times and locations mutually agreed; and (ii) facilitating and otherwise providing Buyer or for the settlement failure to obtain review of the securities sold pursuant to the IAC Class M Equity Offering in accordance with the applicable requirements set forth in any agreements pursuant to which such securities were sold and at a time and in a manner reasonably acceptable to New IAC; and (iii) the provision of financial or other information as reasonably required in connection with any applicable disclosure document and assistance in obtaining customary representation letters, comfort letters, or similar instrumentsby its accountants.
(d) Immediately following Notwithstanding anything to the closing contrary, the condition set forth in Section 6.2(b), as it applies to the Company’s and the Sellers’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the IAC Class M Equity OfferingCompany’s material breach of its obligations under this Section 5.10 (which breach has not been cured within five (5) Business Days after receipt of written notice thereof by Buyer).
(e) In no event shall the Company or any of its Subsidiaries be required to pay any commitment or similar fee or incur any liability or expense in connection with assisting Buyer in arranging the Financing or as a result of any information provided by the Company or its Affiliates in connection therewith. Buyer shall indemnify and hold harmless the Company and its Affiliates and each of their respective officers, New Match shall transfer to New IAC directors, employees, representatives or agents from and against any and all proceeds it receives pursuant Losses suffered or incurred by any of them in connection with any of their cooperation or assistance with respect to the IAC Class M Equity OfferingFinancing or the provision of any information utilized in connection therewith or otherwise arising from the Financing. Buyer shall from time to time, promptly upon request by the Company or the Stockholders’ Representative, reimburse the Company and its Affiliates and each of their respective officers, directors, employees, representatives or agents for any and all reasonable and documented out-of-pocket fees, costs or expenses (including reasonable third party fees, costs and expenses of counsel, accountants and other advisors) actually incurred by any of them in connection with any of their cooperation or assistance with respect to the Financing or the provision of any information utilized in connection therewith or otherwise arising from the Financing.
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Sources: Merger Agreement (Charles River Laboratories International Inc)