Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments. (b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Residential Servicing Asset Purchase Agreement (Nationstar Mortgage Holdings Inc.)
Financing. (a) Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment and/or the Escrow Indenture Documents, without the prior written consent of Seller, if such amendment, modification, waiver or replacement (i) (A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount) to an amount that is below an amount that, assuming the accuracy of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Amended Agreement and pay all fees and amounts in connection with this Amended Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or (C) otherwise expand, amend or modify any provision of the Debt Financing Commitment and/or the Escrow Indenture Documents, in the case of this clause (C), in a manner that would reasonably be expected to (I) materially delay or prevent the Closing, (II) adversely impact in any material respect the ability of Purchaser to enforce its rights under the Debt Financing Commitment or the definitive agreements with respect thereto and/or the Escrow Indenture Documents or (III) materially delay or impair the availability of the Debt Financing at the Closing or materially impede the satisfaction of the conditions to obtaining the Debt Financing at the Closing (including release of the proceeds of the Escrow Notes from escrow) (clauses (A), (B) and (C), collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.12, Purchaser may amend the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (2) in connection with an alternative financing as contemplated by clause (b) of this Section 6.12) or (ii) results in the early termination of the Debt Financing Commitment.
(b) Purchaser 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, proper or advisable to arrange and obtain the proceeds of the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Debt Financing Commitments. Purchaser shall not permit any amendment or modification to be made toCommitment and the Escrow Indenture Documents, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using its reasonable best efforts to (i) maintain in effect the Debt Financing CommitmentsCommitment (including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to the Closing, (ii) satisfy on a timely basis (or obtain the a waiver of) all conditions applicable to Purchaser obtaining the Debt Financing at the Closing as set forth in the Debt Financing Commitments Commitment and the Escrow Indenture Documents (other than those that are solely within the control of Seller and its control Subsidiaries) and otherwise comply with all of its covenants and other material obligations thereunder, (iii) negotiate with the Lenders negotiate, execute and other third parties and enter into deliver definitive agreements (which with respect to any bridge facility documentation shall not be required until reasonably necessary in connection with the funding of the Debt Financing) with respect to such Debt Financing on the terms and subject only to conditions (including the conditions “flex” provisions) contemplated by the Debt Financing CommitmentsCommitment and the Escrow Indenture Documents (and provide executed copies of such definitive agreements to Seller) or on other terms in the aggregate materially no less favorable to Purchaser or the interests of Seller, as to conditionality, than the terms and conditions in the Debt Financing Commitment and the Escrow Indenture Documents, as applicable (provided that in no event shall any such definitive agreement contain terms (other than those included in the Debt Financing Commitment and the Escrow Indenture Documents) that would constitute Restricted Financing Commitment Amendments), (iv) fully pay any and all commitment fees or other fees required by the Debt Financing Commitment, and (v) upon satisfaction of the conditions set forth in the Debt Financing Commitment and the Escrow Indenture Documents, consummate the Debt Financing (or a portion thereof) at or prior to the Applicable Closing, (v) Closing and enforce its rights under the Debt Financing Commitments in Commitment and the Escrow Indenture Documents. In the event any portion of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund Debt Financing becomes unavailable on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, (including any “flex” provisions) contemplated in the aggregateDebt Financing Commitment and the Escrow Indenture Documents, Purchaser shall promptly notify Seller and 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, proper or advisable to obtain alternative financing from alternative sources for such portion on terms and conditions (x) not materially less favorable to Purchaser than the Debt Financing Commitment and the Escrow Indenture Documents, (y) with conditions to the funding of the Debt Financing not materially less favorable to the interests of Seller than those set forth included in the Debt Financing Commitments. Upon Commitment and the reasonable request Escrow Indenture Documents, and (z) in an amount sufficient to consummate the transactions contemplated hereby, including the payment of the SellersEstimated Purchase Price, the amount to be paid pursuant to Section 2.04 and all related fees and expenses promptly following the occurrence of such event, and in any event prior to or on the Closing Date, and, if obtained, Purchaser shall inform the Sellers promptly deliver to Seller true and complete copies of a new financing commitment pursuant to which any such alternative source shall have committed to provide Purchaser with any portion of the status of its efforts Debt Financing. Purchaser shall keep Seller reasonably informed and in reasonable detail with respect to arrange the Financing and any all material developments relating concerning the Debt Financing, including advising and updating Seller, in a reasonable level of detail, with respect to status and proposed closing date of the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: promptly notify Seller in writing of (A1) upon becoming aware of any material breach or default (by any party to the Debt Financing Commitment or any event the Escrow Indenture Documents of which Purchaser has become aware, which breach or circumstance that, with or without notice, lapse of time or both, default if not cured could reasonably be expected to give rise to result in the unavailability of the Debt Financing or any material breach or default) by Purchaser, or to termination of any of the Knowledge of Purchaser, any other party to any Debt Financing Commitment or definitive document related to the Financing; Escrow Indenture Documents, (B2) of the receipt by Purchaser or any of its Affiliates or their respective employees, agents or representatives of any written notice or other written communication from any Person with respect to any (xI) actual or potential breach, default, termination or repudiation by any party to any Debt Financing Commitment Commitment, the Escrow Indenture Documents or any definitive document agreement related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing thereto or (yII) material dispute or disagreement between or among any parties to any Debt Financing Commitment, the Escrow Indenture Documents or any definitive agreement related thereto, in each case which could reasonably be expected to result in the unavailability of the Debt Financing or any termination of any of the Debt Financing Commitment or any definitive document related to the Financing; Escrow Indenture Documents, and (C3) if for any reason Purchaser believes in good faith that (xI) there is a reasonable likelihood (or there is reasonably likely to be be) a material dispute or disagreement between or among any parties to the Debt Financing Commitment, the Escrow Indenture Documents or any definitive agreement related thereto which could reasonably be expected to result in the unavailability of the Debt Financing or any termination of any of the Debt Financing Commitment or any definitive document related to the Financing Escrow Indenture Documents or (yII) it there is reasonably likely a material possibility that it will not be able to obtain all or any portion of the financing contemplated in the Debt Financing Commitment and the Escrow Indenture Documents on the terms, in the manner or from the sources contemplated by the Debt Financing Commitments Commitment, the Escrow Indenture Documents or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement agreements related thereto. If any portion of References in this Amended Agreement to “Debt Financing” shall include the financing contemplated by the Debt Financing becomes unavailable on Commitment and the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing Escrow Indenture Documents as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under permitted by this Section 7.05(a) shall apply 6.12 to such be amended, modified or replaced (including, replacement with alternative financing and the agreements related thereto as if such alternative financing is the commitments pursuant to this Section 6.12) and references to “Debt Financing and any commitment related thereto is the Financing Commitments; providedCommitment” shall include such documents as permitted by this Section 6.12 to be amended, that Purchaser shall not be required to agree to terms and conditions modified or replaced (including replacement with respect to any alternative financing that arecommitments pursuant to this Section 6.12), in the aggregateeach case from and after such amendment, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsmodification or replacement.
(bc) Prior Unless otherwise provided below, prior to the Applicable Closing, the Sellers Seller and its Subsidiaries shall use their commercially reasonable efforts provide to providePurchaser, and shall use their commercially reasonable best efforts to cause their Affiliates and their respective directors, officers, directorsemployees, employees consultants, agents, financial advisors, attorneys, accountants and agents other representatives (collectively, “Representatives”) to, in each case, use reasonable best efforts to provide, at provide to Purchaser’s sole cost and expense, all reasonable cooperation that is reasonably requested by Purchaser in connection with the arrangement Debt Financing or any debt securities being issued in conjunction with or in lieu of all or a portion of the Financing Debt Financing, including using reasonable best efforts in connection with: (i) as promptly as reasonably practical, furnishing Purchaser with (A) the Required Information and (B) such other pertinent information (including financial information and other information to the extent necessary in the preparation of an information package regarding the Business, in each case, to the extent reasonably available to Seller and its Subsidiaries without undue burden and expense to Seller and its Subsidiaries, regarding the Transferred Entities and the Business as may be reasonably requested by Purchaser in writing, and that is customary in connection with Purchaser’s efforts to obtain the Financingany case, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, solely to the extent reasonably requested by necessary to permit Purchaser (including prior real estate title commitmentsto prepare a bank information memoranda or similar document, surveys, environmental reports and similar information)to consummate the Debt Financing, (ii) assist in assisting with the preparation of materials for rating agency presentations, bank information memoranda and similar documents (including historical and pro forma financial statements and information) for required in connection with the Debt Financing, (iii) cause before the Sellers and their Closing and, to the extent reasonably necessary to allow Purchaser or any of its Affiliates to execute and deliver (and use commercially consummate the Debt Financing, using reasonable best efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Debt Financing as may be reasonably requested by PurchaserPurchaser as necessary and customary in connection with the Debt Financing, (iv) using reasonable best efforts to assist Purchaser in the connection with its preparation of, entering into and, upon reasonable prior notice of pro forma financial information to the extent related required for the Debt Financing and to the participation be included in meetings, presentations, drafting sessions or similar activities, any syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactionsdocuments, (v) use commercially reasonable efforts to have the independent accountants executing and delivering as of the Sellers provide their reasonable cooperation Closing, on behalf of the Transferred Entities and assistancethe Business, any necessary pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Purchaser; provided that any obligations contained in all such agreements and documents shall be subject to the occurrence of the Closing and effective no earlier than the Closing, (vi) cooperate cooperating reasonably with the LendersFinancing Sources’ due diligence, to the extent customary and reasonablereasonable and participating in due diligence sessions, (vii) refrain from pursuing obtaining customary payoff letters, Lien terminations and instruments of discharge necessary to be delivered at the Closing to allow for the payoff, discharge or termination in full on the Closing Date of any financing transactions debt necessary to evidence the release of liens or guarantees, (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser that may delay, impede are necessary or otherwise adversely affect customary to permit the consummation of the Debt Financing and (viiiix) assist Purchaser providing all documentation and other information about the Business and the Lenders Transferred Entities to benefit from the existing lending relationships of extent required by applicable “know your customer” and anti-money laundering rules and regulations including the Sellers and their AffiliatesUSA PATRIOT Act, in each case, to the extent reasonably requested at least ten (10) Business Days prior to the anticipated Closing Date; provided, however, that no requested cooperation pursuant Seller, its Subsidiaries and their respective Representatives shall not be required to this Section 7.05(bauthorize, execute, deliver or perform under any agreement with respect to the Debt Financing that (A) shall delay the Applicable Closing, or unreasonably interfere interferes with the ongoing operations business of Sellers Seller or its Subsidiaries; (B) causes any covenant, representation or warranty in this Amended Agreement to be breached in a manner that would cause any closing condition to Purchaser’s obligations to fail to be satisfied or otherwise causes the breach of this Amended Agreement (other than those conditions that by their terms are to be satisfied at the Closing); (C) requires Seller or its Subsidiaries to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Sellers Debt Financing, other than solely in the case of the Transferred Entities, any liability that is contingent upon the occurrence of the Closing or that would be effective only on and after the Closing; (D) requires Seller or its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing or adopt resolutions approving the agreements, documents, instruments and other actions pursuant to which the Debt Financing is obtained; (E) requires Seller or its Subsidiaries to give any legal opinion or other opinion of counsel; or (F) requires Seller or its Subsidiaries to take any action that is prohibited or restricted by, or will conflict with or violate, its organizational documents. Neither Seller nor any of its Subsidiaries shall not (A) be required to pay any commitment or other similar fee, (B) have fees or make any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless payment or incur any other liability or obligation or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing in connection with the Debt Financing in connection with assisting Purchaser in arranging the Debt Financing or as a result of any information provided by Seller, its Subsidiaries or any of their respective Affiliates or Representatives in connection with the Debt Financing. Seller, on behalf of the Business, hereby consents to the use of the Business’ logos in connection with the Debt Financing contemplated by the Debt Financing Commitment; provided, that such expense logos are used solely in a manner that is advanced not intended to, nor reasonably likely to, harm or simultaneously reimbursed by Purchaser (without set-off)disparage the Business, Seller or its Subsidiaries. Purchaser shallagrees that any information regarding Seller or any of its Subsidiaries or Affiliates contained in any presentations, without offering documents, teasers or other materials in connection with, or related to, the right Debt Financing shall be subject to the prior review of set-offSeller, which review shall be completed promptly after receipt thereof.
(d) Purchaser shall indemnify and hold harmless Sellers and Seller, its Affiliates, their respective subsidiaries Subsidiaries and the Representatives of each of the foregoing (the “Financing Indemnitees”) from and against any and all Losses liabilities, losses, damages, claims, costs, expenses, awards, judgments, fines, interest, and penalties suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Debt Financing (including any replacement or (2alternative financing) and the performance of their respective obligations under this Section 6.12 or any information utilized in connection therewith (other than information relation to Sellers approved directly arising from a material misstatement in, or material omission in, the information, taken as a whole, provided by Sellers for use therein). This indemnification shall survive termination or on behalf of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.the
Appears in 2 contracts
Sources: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Financing. (ai) The Purchaser shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only conditions described in the Debt Commitment Letters (including any “flex” provisions contained in any fee letter) and, if required to satisfy the Closing Payment, to obtain the Equity Financing on the terms and conditions described in the Equity Commitment and, prior to the conditions contained in the Financing Commitments. Purchaser Closing, shall not, and shall cause Parent not to, permit any amendment or modification to be made to, replacement of, or any waiver of any provision or remedy under, the Financing Commitments or the definitive agreements with respect thereto, if such amendment, modification, replacement or waiver would (A) reduce the aggregate amount of the Acquisition Financing (including by changing the amount of fees to be paid or original issue discount except for in connection with the exercise of any such amendments“flex” provisions) below the amount necessary to satisfy the Closing Payment or (B) impose new or additional conditions precedent or otherwise expand, modifications amend, replace or waivers which, individually modify any of the conditions precedent to the receipt of the Acquisition Financing or other terms in the aggregate, a manner that would not reasonably be reasonably expected to prevent(I) delay, delay impair or impair prevent the availability consummation of the Sale, (II) make the timely funding of the Acquisition Financing under or satisfaction of the conditions to obtaining the Acquisition Financing materially less likely to occur or (III) adversely impact the ability of the Purchaser or Parent (as applicable) to enforce its rights against other parties to the Financing Commitments or to draw upon and consummate the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedAcquisition Financing. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts Any reference in this Agreement to (i1) maintain in effect “Acquisition Financing” or “Lenders” shall include the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control lenders and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources financing contemplated by the Financing Commitments as amended, replaced or the definitive documents related to the Financing. As soon as reasonably practicable, but modified in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under compliance with this Section 7.05(a5.10(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized “Financing Commitments”, “Equity Commitment” or “Debt Commitment Letters” shall include such documents as amended, replaced or modified in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to compliance with this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections5.10(a).
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Financing. (a) Purchaser shall The Buyer shall, at the Buyer’s expense, use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain fully satisfy in effect all material respects, on a timely basis, all terms, conditions, representations and warranties set forth in the Financing Commitments, Commitment Letters and (ii) satisfy on a timely basis (or obtain enforce its rights under the waiver of) all conditions applicable Commitment Letters. The Buyer shall use commercially reasonable efforts to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions Financings contemplated by the Financing CommitmentsCommitment Letters on terms and conditions no less favorable to the Buyer than the Commitment Letters as soon as reasonably practicable but in any event at the Closing. The Buyer will furnish correct and complete copies of such executed definitive agreements to the Company promptly upon request by the Company. At the Company’s request, the Buyer shall keep the Company reasonably informed with respect to all material activity concerning the status of the Financings contemplated by the Commitment Letters and shall give the Company prompt notice of any material adverse change with respect to such Financings. Without limiting the foregoing, the Buyer agrees to notify the Company promptly, and in any event within two (iv2) consummate the Financing (or a portion thereof) Business Days, if at or any time prior to the Applicable ClosingClosing Date (i) any Commitment Letter shall expire or be terminated for any reason or (ii) any financing source that is a party to any Commitment Letter notifies the Buyer that such source no longer intends to either provide or underwrite financing to the Buyer on the material terms set forth therein. Other than in connection with this Agreement, the Buyer shall not, and shall cause Buyer Parent and such entity’s direct and indirect subsidiaries not to, without the prior written consent of the Company, take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition (including the disposition of any capital stock of any Buyer Subsidiary), lease, contract or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent the Buyer’s obtaining of the Financing contemplated by any Commitment Letter. The Buyer shall not amend or alter, or agree to amend or alter, (vi) enforce its rights under the Financing Commitments Equity Commitment Letter in any manner adverse to the event Company without the prior written consent of the Company or (ii) any Debt Commitment Letter in any manner that would materially impair or delay or prevent the transactions contemplated by this Agreement without the prior written consent of the Company. If any Commitment Letter shall be terminated or modified in a breach or other failure manner materially adverse to fund the Buyer for any reason, the Buyer shall use commercially reasonable efforts to (i) obtain, and, if obtained, will provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by a Lender that impedes or delays the Applicable Closing, such Commitment Letter as originally issued; (ii) enter into definitive agreements with respect to such new financing; and (viiii) otherwise cause obtain funds under such agreements to the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required extent necessary to consummate the transactions contemplated by this Agreement; provided that the Buyer shall be under no obligation to be consummated at the Applicable Closing (including taking enforcement action obtain or seek to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to obtain any financing commitment containing terms and or funding conditions that are, in the aggregate, materially less favorable to Purchaser the Buyer or the Merger Sub than those included in such Commitment Letter (as determined in the Buyer’s good faith and reasonable discretion). In the event that, after use of Buyer’s commercially reasonable efforts, Buyer is unable to obtain such new financing as described in the immediately preceding sentence, then the Company may, in its sole discretion, propose an alternative new financing that provides for at least the same amount of financing as contemplated by the Commitment Letters as originally issued on terms that are not less favorable to the Buyer and its Affiliates than those set forth in the Financing Commitments. Upon Commitment Letters as originally issued (as determined in the Buyer’s good faith and reasonable request of the Sellersdiscretion), Purchaser and Buyer shall inform the Sellers of the status of its use commercially reasonable efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or enter into definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person agreements with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related such alternative new financing and obtain funds under such agreements to the Financing of any provisions of any Financing Commitment or any definitive document related extent necessary to consummate the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources transactions contemplated by this Agreement. In the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but event that a new Debt Commitment Letter is executed in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under accordance with this Section 7.05(a) 6.17, then such new Debt Commitment Letter shall apply to such alternative financing and be the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments“Debt Commitment Letter” for purposes of this Agreement.
(b) Prior The Company agrees to provide the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable Buyer with such cooperation in connection with the arrangement of the Financing financings contemplated by the Commitment Letters as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the FinancingBuyer, including to (i) provide readily-available financial participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, “road shows” and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information)sessions with rating agencies, (ii) assist in the preparation of bank information memoranda using commercially reasonable efforts to prepare business projections and similar documents financial statements (including historical and pro forma financial statements and information) for the Financingstatements), (iii) cause assisting the Sellers Buyer in preparing offering memoranda, private placement memoranda and their Affiliates similar documents, (iv) providing and executing documents as may reasonably be requested by the Buyer, including a certificate or certificates of the chief financial officer of the Company with respect to execute solvency and deliver financial matters, (and use v) using commercially reasonable efforts to obtain from the Sellers’ surveys and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing title insurance as may be reasonably requested by Purchaserthe Buyer, and (ivvi) assist in reasonably facilitating the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication pledge of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) collateral. The Company shall also use commercially reasonable efforts to have cause legal counsel to provide customary legal opinions and an independent auditor of the Company to provide any unqualified opinions, consents or customary comfort letters with respect to its financial statements. The Company shall allow the Buyer’s representatives the opportunity to review and comment upon any such financial statements (including pro forma financial statements) in draft form and to allow such representatives access to the Company and supporting documentation with respect to the preparation of such financial statements and the independent accountants of auditors’ work papers relating to such financial statements. Notwithstanding the Sellers provide their reasonable cooperation and assistanceforegoing, (vii) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no such requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or not unreasonably interfere with the ongoing operations of Sellers the Company and its Subsidiaries and (ii) neither the Sellers Company nor any of its Subsidiaries shall not (A) be required to pay any commitment or other similar fee, (B) have fee or incur any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related liability in connection with the financings contemplated by the Commitment Letters prior to the FinancingEffective Time (unless such fee or liability is subject to the immediately succeeding sentence or such commitment fee or liability is conditional on the occurrence of the Effective Time). The Buyer shall, or (C) incur any promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right costs and fees and expenses of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or counsel incurred by them the Company or any of its Subsidiaries in connection with such cooperation to the extent such actions shall have been requested by the Buyer.
(1c) any action taken by them The Company shall use commercially reasonable efforts to make its cash and cash equivalents and the cash and cash equivalents of its domestic and foreign Subsidiaries available for deposit into the Exchange Fund at or prior to the request of Purchaser pursuant Closing. The parties acknowledge if the Company shall use its commercially reasonable efforts to this Section 7.05(b) take the actions set forth on Schedule 6.17(c), or in connection with use commercially reasonable efforts to cause such actions to be taken, then the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) Company shall be kept confidential by them in accordance with the Confidentiality Agreement, except deemed to have exerted its commercially reasonable efforts for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsthis purpose.
Appears in 2 contracts
Sources: Merger Agreement (Concerto Software Inc), Merger Agreement (Aspect Communications Corp)
Financing. (a) Purchaser Buyer 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, proper necessary or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable following the date of this Agreement and to consummate the Debt Financing on the terms and subject only Closing Date, including the following:
(i) Buyer shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the conditions contained in Debt Commitment Letter, and/or substitute other debt (but not equity financing) for all or any portion of the Debt Financing Commitments. Purchaser shall not permit from the same financing sources or alternative financing sources (with Parent’s consent), if any amendment such amendment, replacement, supplement or other modification to be made to, or any waiver of any provision of the Commitment Letter that amends the Debt Financing and/or substitution of all or remedy underany portion of the Debt Financing shall not (i) impose new or additional or expand upon or modify the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter, (ii) prevent or impede or delay the Financing Commitments consummation of the transactions contemplated by this Agreement, (except iii) adversely impact the ability of Buyer to enforce its rights under the Debt Commitment Letter or (iv) provide for terms and conditions (including any such amendments“flex” provisions) that are, modifications or waivers which, individually or in the aggregate, would less favorable to Buyer and the Sellers than those in the Debt Commitment Letter. Buyer shall not be reasonably expected permitted to prevent, delay or impair reduce the availability amount of the Debt Financing under the Financing Commitments or the consummation Debt Commitment Letter unless it provides an equity commitment letter of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, a corresponding amount.
(ii) satisfy participation by senior management of Buyer in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iii) satisfying on a timely basis (or obtain the a waiver of) all conditions applicable to Purchaser in the Financing Commitments Conditions that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, control;
(iv) consummate negotiating, executing and delivering Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions related thereto) and providing copies of drafts thereof exchanged with the Financing Sources to Parent, subject to any customary redaction;
(or a portion thereofv) in the event that the conditions set forth in Sections 8.01 and 8.02 and the Financing Conditions have been satisfied or, upon funding would be satisfied, causing the Financing Sources to fund the full amount of the Debt Financing at or prior to the Applicable ClosingClosing (and, for the avoidance of doubt, Buyer acknowledges and agrees that (A) in the event that on the final day of the Marketing Period (x) all or a portion of the Debt Financing structured as high yield debt or contemplated to be sold pursuant to a Rule 144A transaction has not been issued or sold, (vy) enforce all conditions precedent to Buyer’s obligations hereunder shall have been satisfied or waived (other than those conditions which by their nature will not be satisfied until the Closing) and (z) the bridge financing contemplated by the Debt Commitment Letter is available, then on such date Buyer shall borrow under and use the proceeds of the bridge financing to finance, in part, the Closing Date Payments and (B) Buyer shall comply with any “securities demand” or similar provisions included in the Debt Commitment Letter or any related fee letter and use any proceeds from the sale of securities issued thereunder to finance, in part, the Closing Date Payments); and
(vi) enforcing its rights under the Financing Commitments Debt Commitment Letters.
(b) Buyer shall keep Parent informed in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Financing and any material developments relating to the Debt Financing. Without limiting the generality of the foregoing, Purchaser Buyer shall give the Sellers Parent prompt notice: notice (Aa) upon becoming aware of any material breach or default repudiation, or any anticipated or threatened breach or repudiation (or including any event or circumstance that, with without or without notice, lapse of time or both, could would reasonably be expected to give rise to any material breach or default) repudiation), by Purchaser, or any Party to the Knowledge Debt Commitment Letters of Purchaser, any other party to any Financing Commitment which Buyer or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing its Affiliates becomes aware or (yb) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if if, for any reason Purchaser reason, Buyer no longer believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable Debt Commitment Letters on the terms described therein. Without limiting Buyer’s other obligations under this Section 5.15, if a Financing Failure Event occurs, Buyer shall (i) promptly notify Parent of such Financing Failure Event and conditions contemplated the reasons therefor, (ii) in consultation with the Financing CommitmentsParent and the Sellers, Purchaser shall use its reasonable best efforts to arrange and obtain (on terms as favorable to Buyer in the aggregate as are reasonably available for financings of the type contemplated by the Debt Commitment Letter in the debt markets at such time) alternative financing as promptly as practicable from alternative sources financing sources, in an amount sufficient to replace make the Financing Closing Date Payments and any payments pursuant to Section 2.06 and consummate the transactions contemplated by this Agreement, as promptly as practicable and without following the imposition occurrence of any new or additional conditions and without any adverse amendment to existing conditions to the Financingsuch event, and Purchaser’s obligations under this (iii) use its reasonable best efforts to obtain, and when obtained, provide Parent and the Sellers with a copy of, a replacement financing commitment in accordance with Section 7.05(a5.15(a)(i) shall apply to that provides for such alternative financing financing.
(c) As promptly as practicable following the receipt of the financial information required by clause (A) of the definition of Financing Information, Holdings shall prepare and file with the agreements related thereto SEC a prospectus supplement to its currently effective Registration Statement on Form S-3 with respect to, and commence an offering of, the common stock of Holdings (the “Common Stock Offering”), which Buyer will use to pay a portion of the Purchase Price for the Equity Interests on the Closing Date.
(d) As promptly as if such alternative financing is practicable following the consummation of the Common Stock Offering (and in any event following the receipt of the financial information required by clause (A) of the definition of Financing Information), Holdings shall prepare and any commitment related thereto is file with the Financing Commitments; provided, that Purchaser shall not be required SEC and deliver to agree to holders of its common stock a prospectus supplement for a rights offering on the terms and conditions with respect to any alternative financing that are, described in the aggregate, materially Parent Backstop generating gross proceeds to Holdings of no less favorable in any material respect than $125 million less the net proceeds received by Holdings pursuant to Purchaser than those set forth in the Financing CommitmentsCommon Stock Offering (the “Subscription Rights Offering”).
(be) Prior to the Applicable ClosingClosing Date, Buyer shall promptly notify Parent upon the Sellers receipt of any comments from the SEC or its staff or any request from the SEC or its staff with respect to the Common Stock Offering or the Subscription Rights Offering, and Buyer and Holdings shall provide Parent with copies of all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the Common Stock Offering or the Subscription Rights Offering or the transactions contemplated hereby. Buyer and Holdings shall use their commercially reasonable best efforts to provide, and shall use their commercially reasonable efforts respond as promptly as practicable to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement any comments of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers SEC with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) Common Stock Offering or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in Subscription Rights Offering or the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionscontemplated hereby.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Financing. Buyer acknowledges that its obligation to consummate the transactions contemplated by this Agreement is not and will not be subject to the receipt by Buyer of any financing or the consummation of any transaction other than the occurrence of the ABI Transaction Closing (a) Purchaser shall use its reasonable best efforts and Buyer further acknowledges that it has no termination rights regarding such financing). As of the date of this Agreement, Buyer has delivered to takeABI true, or cause correct and complete copies of the executed commitment letter from the Financing Sources (including all exhibits, schedules, and annexes to be taken, all actions each such letter as and to dothe extent delivered to ABI on or prior to the date of this Agreement, collectively, the “Original Commitment Letter”), a copy of which is attached hereto as Exhibit A, together with any related fee letters (provided that the existence or cause to be doneamount of fees, all things necessary“market flex” provisions, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the pricing terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to pricing caps set forth therein, none of which would reasonably be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair adversely affect the availability of the Financing under Financing, or reduce the Financing Commitments or aggregate principal amount thereof, may be redacted in a customary manner), pursuant to which the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders counterparties thereto have committed to provide the Financing); provided, that Purchaser shall not be required to agree to terms financing described therein in connection with the transactions contemplated hereby. The Original Commitment Letter and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request any other commitment letter (including any replacement of the SellersOriginal Commitment Letter) executed in accordance with Section 5.04, Purchaser shall inform as replaced, amended, supplemented, modified or waived in accordance with Section 5.04, including all exhibits, schedules and annexes to such letters, are hereinafter referred to together as the Sellers “Commitment Letter”. The financing contemplated pursuant to the Commitment Letter (including, for the avoidance of doubt, any debt, equity or securities offering contemplated thereby) is hereinafter referred to as the “Financing”. As of the status date of this Agreement, the Original Commitment Letter has not been withdrawn, terminated, rescinded, amended or otherwise modified in any respect. There are no agreements, side letters or arrangements (a) to which Buyer or any of its efforts to arrange the Financing and any material developments Affiliates is a party relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (yb) material dispute or disagreement between or among any parties to any Financing Commitment Buyer or any definitive document related of its Affiliates, on the one hand, and providers of debt or equity financing or any of their respective Affiliates, on the other hand, that have not been disclosed to ABI prior to the Financing; date hereof and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to could affect the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion availability of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. The Commitment Letter constitutes the legally valid and binding obligation of Buyer and each of its applicable Affiliates and, to the knowledge of Buyer, the other parties thereto, enforceable in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally or by general equitable principles (whether in equity or at law). As soon as reasonably practicable, but in any event within five (5) Business Days after of the date the Sellers deliver to Purchaser a written requesthereof, Purchaser shall provide neither Buyer nor any information reasonably requested by the Sellers relating to of its Affiliates is in breach of any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly terms or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Original Commitment Letter. As of the date hereof, no Financing Commitments.
(b) Prior Source has notified Buyer in writing of its intention to terminate the Original Commitment Letter or not to provide the Financing. There are no conditions precedent related to the Applicable Closingfunding of the Financing, other than as expressly set forth in the Sellers shall use their commercially reasonable efforts Commitment Letter. The aggregate proceeds available to provide, and shall use their commercially reasonable efforts be disbursed as provided under the Original Commitment Letter as of the date hereof are sufficient to cause their Affiliates and their respective officers, directors, employees and agents enable Buyer to provide, at Purchaser’s sole cost and expense, pay in cash all reasonable cooperation amounts required to be paid by it in cash in connection with the arrangement transactions contemplated hereby. As of the Financing as may be reasonably requested by Purchaser and that is customary date hereof, Buyer has paid in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against full any and all Losses suffered or incurred commitment and other fees required by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement Original Commitment Letter that are due as of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsdate hereof.
Appears in 2 contracts
Sources: Purchase Agreement (Anheuser-Busch InBev S.A.), Purchase Agreement (Molson Coors Brewing Co)
Financing. (a) Each of Purchaser and Parent 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, proper or advisable to arrange arrange, consummate and obtain the proceeds of the Financing as promptly as reasonably practicable on the terms and subject only conditions described in the Equity Commitment Letter, including: (i) maintaining in effect the Equity Commitment Letter; (ii) satisfying on a timely basis all conditions applicable to Parent and Purchaser set forth in the Equity Commitment Letter that are within their control; (iii) consummating the Financing at or prior to the Acceptance Time (and in any event prior to the Outside Date), subject to the satisfaction, or waiver by Parent, of all conditions contained in to the Financing Commitments. Offer and the Merger; and (iv) fully enforcing each Sponsor’s obligations (and the rights of Parent and Purchaser) under the Equity Commitment Letter.
(b) Neither Purchaser nor Parent shall not permit agree to any amendment amendments or modification to be made modifications to, or grant any waiver of waivers of, any condition or other provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) Equity Commitment Letter without the prior written consent of the Sellers, Company (which consent shall not may be unreasonably withheld, conditioned granted or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser withheld in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at PurchaserCompany’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lendersdiscretion), to the extent reasonably requested by Purchaser such amendments, modifications or waivers would (including prior real estate title commitments, surveys, environmental reports and similar information), (iii) assist in reduce the preparation aggregate amount of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain aggregate cash proceeds available from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (ii) impose new or additional conditions precedent or otherwise expands, amends or modifies any of the conditions precedent or other terms therein in a manner adverse to Purchaser, Parent or the Company, including any expansion, waiver, amendment or modification that would be reasonably likely to (A) prevent or delay or impair the ability of Purchaser and Parent to consummate the Offer, the Merger and the other transactions contemplated hereby, (B) adversely impact the ability of the Company, Purchaser or Parent to enforce its rights or remedies against the other parties to the Equity Commitment Letter or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without make the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement timely funding of the Financing or satisfaction of the conditions precedent to obtaining the Financing any less likely to occur. Parent shall promptly (2and in any event within one (1) Business Day) notify the Company of (i) any information utilized in connection therewith amendment, waiver or modification, or agreement to do any of the foregoing, of any term of the Equity Commitment Letter, (other than information relation ii) the expiration or termination (or attempted or purported termination, whether or not valid) of the Equity Commitment Letter, or (iii) any refusal by the Sponsor to Sellers approved provide, any stated intent by Sellers for use therein)the Sponsor to refuse to provide, or any expression of concern or reservation by the Sponsor regarding its obligation and/or ability to provide, the full financing contemplated by the Equity Commitment Letter. This indemnification Neither Purchaser nor Parent shall survive release or consent to the termination of this Agreement. All material, non-public information regarding Sellers the obligations of the lenders and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with other Persons under the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsEquity Commitment Letter.
Appears in 2 contracts
Sources: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Financing. (ai) Purchaser shall use The Buyer will have available to it at the Closing all funds necessary for its reasonable best efforts payment of the Closing Merger Consideration in accordance with this Agreement and for all other actions necessary for Buyer to takeconsummate the transactions contemplated in this Agreement. The Buyer understands that its obligations to consummate the transactions
(ii) Buyer has delivered to the Company a true, complete and correct copy of (i) an executed debt commitment letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and Barclays Bank PLC (the “Debt Commitment Letter”) and (ii) each related fee letter (with customary redactions only with respect to fee amounts and the economic terms of the “market flex” provisions and nothing which would affect the amount or cause availability of the Financing), in each case of the foregoing clauses (i) and (ii), in effect as of the date hereof (such Debt Commitment Letter and related fee letters, as they may be amended, modified or replaced in accordance with Section 4.9, collectively, the “Financing Commitments”), which establish commitments to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms provide debt financing in an aggregate amount set forth therein and subject only to the terms and conditions set forth therein (such debt financing described in the Financing Commitments of such aggregate amount described therein, the “Financing”).
(iii) As of the date hereof, none of the Financing Commitments have been amended or modified and no amendment or modification to the Financing Commitments is contemplated; provided that, for purposes of the foregoing, the existence or exercise of the “flex” provisions contained in one or more fee letters with respect to the Financing Commitments shall not constitute an amendment or modification of the Financing Commitments. The respective commitments contained in the Financing Commitments. Purchaser shall Commitments have not permit been terminated, reduced, withdrawn or rescinded in any amendment or modification to be made torespect and, or other than any waiver replacement of any provision or remedy under, the Financing Commitments (except for any permitted pursuant to Section 4.9, no such amendmentstermination, modifications reduction, withdrawal or waivers which, individually rescission is contemplated. There are no side letters or other contracts or arrangements related to the funding of the Financing other than as expressly set forth in the aggregateFinancing Commitments delivered to the Company pursuant to this Section 3.2(e). The Buyer has fully paid any and all commitment fees or other fees, amounts or expenses in connection with the Financing Commitments that are payable on or prior to the date hereof and the Buyer is unaware of any fact or occurrence existing on the date hereof that would not reasonably be reasonably expected to preventcause any of the assumptions or any of the statements set forth in the Financing Commitments to be ineffective or inaccurate. The Financing Commitments are in full force and effect and the obligations set forth therein (including, delay for the avoidance of doubt, the obligation to provide the Financing upon satisfaction or impair waiver of the Limited Financing Conditions) are the legal, valid, binding and enforceable obligations of the Buyer and, to the Buyer’s Knowledge, each of the other parties thereto. There are no conditions precedent or other contingencies related to the funding of the full amount (or any portion) of the Financing, including any condition relating to the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellerspursuant to any “flex” provision, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those as expressly set forth in the Debt Commitment Letter (such conditions, the “Limited Financing CommitmentsConditions”). Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any No event or circumstance thathas occurred which, with or without notice, lapse of time or both, constitutes or could reasonably be expected to give rise to any material constitute a default or breach or default) by Purchaseron the part of the Buyer or, or to the Knowledge of PurchaserBuyer’s Knowledge, any other party to thereto under any Financing Commitment or definitive document related to the Financing; (B) of the receipt Financing Commitments. The Buyer has no reason to believe that any of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related the conditions to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments will not be satisfied on a timely basis or that the Financing will not be made available to the Buyer on or prior to the Closing, and the Buyer is not aware of the existence of any current or anticipated fact or event as of the date hereof that would reasonably be expected to cause such conditions to funding not be satisfied on a timely basis or the definitive documents related Closing not to the Financingoccur. As soon as reasonably practicableThe Buyer has not incurred any obligation, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written requestcommitment, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) restriction or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure other liability of any conditions contained kind, and is not contemplating or aware of any obligation, commitment, restriction or other liability of any kind, in either case which could reasonably be expected to impair or adversely affect the resources, funds or capabilities addressed by this Section 3.2(e) (including the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments).
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Zayo Group LLC)
Financing. (a) Purchaser Purchasers shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Acquisition Financing as promptly as reasonably practicable on the terms and subject only conditions described in the Commitment Letter and, prior to the conditions contained in the Financing Commitments. Purchaser Closing, shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Commitment Letter or the definitive agreements with respect thereto, if such amendment, modification or waiver (A) reduces the aggregate amount of the Acquisition Financing, or (B) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the receipt of the Acquisition Financing Commitments (except for any such amendments, modifications or waivers which, individually or other terms in the aggregate, a manner that would not reasonably be reasonably expected to prevent(x) make, delay or impair in any material respect, the availability timely funding of the Acquisition Financing under the Financing Commitments or the consummation satisfaction of the Transactionsconditions to obtaining the Acquisition Financing less likely to occur or (y) adversely impact, in any material respect, the ability of Purchasers to enforce its rights against other parties to the Commitment Letter or to draw upon and consummate the Acquisition Financing; provided, however, that Purchasers may amend, replace or otherwise modify the Commitment Letter or any definitive agreement with respect thereto to add arrangers, bookrunners, agents, lenders or similar entities who had not executed the Commitment Letter as of the date of this Agreement or to reassign titles to such parties who had executed the Commitment Letter as of the date of this Agreement; provided, in each case, such amendment, replacement or modification does not, without the prior written consent of Seller: (i) make, in any material respect, the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality timely funding of the foregoingAcquisition Financing or satisfaction of the conditions to obtaining the Acquisition Financing less likely to occur or (ii) adversely impact, Purchaser in any material respect, the ability of Purchasers to enforce its rights against other parties to the Commitment Letter or to draw upon and consummate the Acquisition Financing.
(b) Purchasers shall use their reasonable best efforts to (i) subject to Section 6.5(c), maintain in effect the Financing Commitments, (ii) and satisfy on a timely basis (or obtain the waiver of) all terms, covenants and conditions applicable to Purchaser set forth in the Financing Commitments that are Commitment Letter within its Purchasers’ reasonable control in accordance with the terms and otherwise comply with its covenants and other obligations thereundersubject to the conditions thereof, (iiiii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing financing contemplated by the Commitment Letter on the terms and subject only conditions contained in the Commitment Letter, (iii) satisfy all conditions to the conditions contemplated by the Financing Commitmentssuch definitive agreements that are applicable to Purchasers that are within Purchasers’ control, (iv) if the NGX Sale is not consummated in accordance with the NGX Agreement prior to or contemporaneously with the Closing, draw upon and consummate the Acquisition Financing (or a portion thereof) at or prior to the Applicable Closing, Closing and (v) if the NGX Sale is not consummated in accordance with the NGX Agreement prior to or contemporaneously with the Closing, fully enforce its rights under the Financing Commitments in the event of a breach or other failure Commitment Letter to fund by a Lender that impedes or delays the Applicable Closing, draw upon and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions Acquisition Financing, subject to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser Commitment Letter. Purchasers shall inform the Sellers of keep Seller informed on a reasonably current basis and in reasonable detail with respect to all material activity concerning the status of its efforts to arrange the Financing and any material developments relating to the Acquisition Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: .
(Ac) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Acquisition Financing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsCommitment Letter or the Commitment Letter becomes terminated or modified in a manner materially adverse to Purchasers for any reason, Purchaser Purchasers shall use its their reasonable best efforts to arrange and obtain alternative financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing with conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to obtaining such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that areno less favorable, in the aggregate, materially less favorable to Purchasers than those contained in any material the Commitment Letter and in an amount at least equal to the Acquisition Financing or such unavailable portion thereof, as the case may be (the “Alternate Financing”), and to obtain a new financing commitment letter with respect to Purchaser than those set forth such Alternate Financing (the “New Commitment Letter”) which shall replace the existing Commitment Letter, a copy of which shall be promptly provided to Seller. In the event any New Commitment Letter is obtained, any reference in this Agreement to the Financing Commitments“Acquisition Financing” shall mean the financing contemplated by the New Commitment Letter.
(bd) Prior For the avoidance of doubt, neither the availability of nor the funding of the Acquisition Financing shall be a condition to the Applicable Closingobligation of Purchasers to consummate the Sale.
(e) From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, subject in all respects to the Sellers CMA Orders, Seller shall, and shall cause its Subsidiaries to, use their commercially reasonable efforts to provide, provide such assistance and shall cooperation (and to use their commercially reasonable efforts to cause its and their respective representatives to provide such assistance and cooperation) with respect to any Acquisition Financing as is reasonably requested by Purchasers, including using commercially reasonable efforts with respect to: (i) cooperating reasonably with each Lender’s due diligence; and (ii) providing financial information relating only to the Business or the Trayport Companies as may reasonably be requested by a Purchaser; provided that nothing in this Section 6.5(e) shall require Seller, any of its Subsidiaries (including any Trayport Company) or any of its or their respective representatives to prepare any new financial statements or projections that are not prepared in the ordinary course of business and past practice of the Business. Notwithstanding any other provision set forth herein or in any other agreement between Seller and a Purchaser (or its Affiliates), Seller agrees that Purchasers and their Affiliates may share customary projections with respect to the Business or the Trayport Companies with the Lenders identified in the Commitment Letters and to any existing lenders of Purchasers, and that Purchasers, their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation such Lenders may share such information with potential Lenders in connection with any marketing efforts in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Acquisition Financing, including provided that the recipients of such information are subject to customary confidentiality arrangements between Purchasers and such parties (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation which need not include Seller). None of an informational package regarding the businessSeller, operations, financial projections and prospects any of Purchaser and the Business and Purchased Assets which is customary for such financing its Subsidiaries or reasonably necessary for the completion any of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and its or their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, respective directors or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) officers or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may personnel or representatives shall be reasonably requested required by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b6.5(e) shall delay the Applicable Closing, to take any action or provide any assistance that unreasonably interfere interferes with the ongoing operations of Sellers Seller and the Sellers its Subsidiaries.
(f) Purchasers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers Seller, its Subsidiaries and its and their respective subsidiaries and Representatives representatives from and against any and all Losses losses, damages, claims and out-of-pocket costs or expenses, actually suffered or incurred by them in connection with any Acquisition Financing (1) including any action taken by them at the request of Purchaser pursuant to in accordance with this Section 7.05(b6.5) or in connection with the arrangement of the Financing or (2) and any information utilized in connection therewith (other than untrue information relation to Sellers approved provided by Sellers Seller or its Subsidiaries or their respective representatives in writing for use thereinin the Acquisition Financing documents). This indemnification shall survive termination , in any case, except to the extent suffered or incurred as a result of this Agreement. All materialthe gross negligence, non-public information regarding Sellers and their Affiliates provided to Purchaser willful misconduct, fraud or intentional breach by or of Seller or its Representative pursuant to this Section 7.05(b) shall be kept confidential Subsidiaries or their respective representatives. In addition, Purchasers shall, promptly upon request by them in accordance with the Confidentiality AgreementSeller, except reimburse Seller for disclosure to potential investors as required all reasonable and documented out-of-pocket costs incurred by Seller or its Subsidiaries in connection with the Financing subject to customary confidentially protectionsperformance of Seller’s obligations under this Section 6.5.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Intercontinental Exchange, Inc.), Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing CommitmentsFinder's Fee". Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments It is understood that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event Consultant introduces Company, or its nominees, to a lender or equity purchaser, not already having a preexisting relationship with the Company, with whom Company, or its nominees, ultimately finances or causes the completion of such financing, Company agrees to compensate Consultant for such services with a breach "finder's fee" in the amount of 2.5% of total gross funding provided by such lender or equity purchaser, such fee to be payable in cash. This will be in addition to any fees payable by Company to any other failure intermediary, if any, which shall be per separate agreements negotiated between Company and such other intermediary. It is also understood that in the event Consultant introduces Company, or its nominees, to fund an acquisition candidate, either directly or indirectly through another intermediary, not already having a preexisting relationship with the Company, with whom Company, or its nominees, ultimately acquires or causes the completion of such acquisition, Company agrees to compensate Consultant for such services with a "finder's fee" in the amount of 2% of total gross consideration provided by such acquisition, such fee to be payable in cash. This will be in addition to any fees payable by Company to any other intermediary, if any, which shall be per separate agreements negotiated between Company and such other intermediary. It is specifically understood that Consultant is not nor does it hold itself out be a Lender Broker/Dealer, but is rather merely a "Finder" in reference to the Company procuring financing sources and acquisition candidates.
5.1 It is further understood that impedes or delays the Applicable ClosingCompany, and (vi) otherwise cause the Lenders not Consultant, is responsible to fund perform any and all due diligence on the Applicable Closing Date the Financing (such lender, equity purchaser or a portion thereof) required acquisition candidate introduced to consummate the transactions it by Consultant under this Agreement, prior to Company receiving funds or closing on any acquisition.
5.2 Company agrees that said compensation to Consultant shall be consummated paid in full at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); providedtime said financing or acquisition is closed. Moreover, that Purchaser shall not said compensation, will be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating a condition precedent to the Financing. Without limiting the generality closing of the foregoingsuch financing or acquisition and Company shall execute any and all documents necessary to effect said compensation.
5.3 As further consideration to Consultant, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by PurchaserCompany, or its nominees, agrees to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person pay with respect to any (x) actual financing or potential breach, default, termination acquisition candidate provided directly or repudiation indirectly to the Company by any party to any Financing Commitment lender or any definitive document related to equity purchaser covered by this Section 5. during the Financing period of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or one year from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement, a fee to Consultant equal to that outlined in Section "5" herein.
5.4 Consultant will notify Company of introductions it makes for potential sources of financing or acquisitions in a timely manner (within approximately 3 days of introduction) via facsimile memo. All material, non-public information regarding Sellers If Company has a preexisting relationship with such nominee and their Affiliates provided to Purchaser or its Representative pursuant to believes such party should be excluded from this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsthen Company will notify Consultant immediately of such circumstance via facsimile memo.
Appears in 2 contracts
Sources: Consulting Agreement (U S Wireless Data Inc), Consulting Agreement (U S Wireless Data Inc)
Financing. (a) Purchaser Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable following the date hereof and to consummate the Debt Financing on the terms and subject only to the conditions contained in the Financing CommitmentsClosing Date. Purchaser Such actions shall not permit any amendment or modification to be made include commercially reasonable efforts to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to : (i) maintain in effect the Financing Commitments, Debt Commitment Letters; (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, Conditions; (iii) negotiate with the Lenders negotiate, execute and deliver definitive agreements and other third parties and enter into definitive agreements with respect to the documentation (“Debt Financing on Documents”) that reflect the terms contained in the Debt Commitment Letters; and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure that the conditions set forth in Section 6.1 and the Financing Conditions have been satisfied or, upon funding would be satisfied, cause the financing providers to fund by a Lender that impedes or delays the Applicable ClosingDebt Financing in an amount sufficient, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required together with available cash, to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing CommitmentsTransactions. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Buyer shall give the Sellers Company prompt notice: (A) upon becoming aware notice of any material breach, repudiation, or threatened or anticipated breach or default (or any event or circumstance thatrepudiation, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any a Debt Commitment Letter of which Buyer or its Affiliates becomes aware. Without limiting Buyer’s other obligations under this Section 4.8(a), if a Financing Commitment or any definitive document related Failure Event occurs Buyer shall (x) promptly notify Seller of such Financing Failure Event and the reasons therefor, (y) use commercially reasonable efforts to obtain alternative financing, in an amount sufficient, together with available cash, to consummate the Transactions, as promptly as practicable following the occurrence of such event, and (z) use commercially reasonable efforts to obtain, and when obtained, provide Seller with a copy of, a new financing commitment, subject only to financing conditions substantially comparable to the Financing Conditions, that provides for such alternative financing. Neither Buyer nor any of any provisions of any Financing its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace a Debt Commitment Letter or any definitive document related Debt Financing Document except for (a) substitutions and replacements pursuant to the immediately preceding sentence or (b) if such amendment, modification, supplement, restatement, assignment, substitution or replacement is not reasonably likely to (x) impair or materially delay the funding of the Debt Financing or (y) material dispute impair or disagreement between materially delay the Closing. Upon any such amendment, supplement, modification or among any parties to any replacement of a Debt Commitment Letter or Debt Financing Document in accordance with this Section 4.8(a), the term “Debt Commitment Letter” shall include such “Debt Commitment Letter” as so amended, supplemented, modified or any definitive document related replaced. Notwithstanding anything herein to the Financing; and contrary, in no event shall “commercially reasonable efforts” of Buyer under this Section 4.8 be deemed or construed to require Buyer to instigate or pursue litigation against any of the Debt Financing Sources. For purposes of this Agreement, a “Financing Failure Event” shall mean any of the following: (CA) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood the commitments with respect to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Debt Financing on necessary to consummate the terms, in the manner Transactions expiring or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A)being terminated, (B) for any reason, all or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Debt Financing becomes unavailable on necessary to consummate the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the FinancingTransactions becoming unavailable, or (C) incur a material breach or repudiation, by any out-of-pocket expense unless such expense is advanced party to a Debt Commitment Letter (in each case, other than as a result of a breach by the Seller of this Agreement which prevents or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without renders impracticable the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement consummation of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use thereinDebt Financing). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Financing. (a) Purchaser Each of Parent and Merger Sub shall use its reasonable best efforts to takearrange, or cause to be taken, all actions obtain and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain consummate the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment Letters (or, if available, on other terms that are acceptable to Parent in its sole discretion, so long as such other terms do not include or result in a Prohibited Modification), and shall not permit any amendment amendment, restatement, replacement, supplement or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments Commitment Letters if such amendment, restatement, replacement, supplement, modification or waiver (except for any such amendments, modifications A) reduces (or waivers which, individually or in the aggregate, would not reasonably be reasonably expected to prevent, delay or impair have the availability effect of reducing) the aggregate amount of the Financing under to an amount less than, when taken together with the available portion of the Financing Commitments or and cash on hand at Parent, the consummation Company and its Subsidiaries (assuming such cash on hand of the TransactionsCompany and its Subsidiaries is equal to the Minimum Cash Amount), the amount required to pay for the Financing Purposes (the “Required Amount”), (B) without imposes new or additional conditions precedent to the prior written consent funding of the SellersFinancing, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality otherwise expands any of the foregoingconditions precedent to the funding of the Financing or (C) would reasonably be expected to (i) material delay (taking into account Section 2.01) or prevent the Closing or (ii) adversely impact the ability of Parent or Merger Sub or, Purchaser in the case of the Equity Commitment Letters, the Company, to enforce its rights against other parties to the Financing Commitment Letters (the effects described in clauses (A) through (C), collectively, “Prohibited Modifications”); provided that Parent may add (pursuant to the terms of the Debt Commitment Letter) as parties to the Debt Commitment Letter lenders, arrangers, bookrunners, agents, managers or similar entities who have not executed the Debt Commitment Letter as of the date hereof. For purposes of this Section 6.17, references to “Equity Financing” shall include the financing contemplated by the Equity Commitment Letters as permitted to be amended, restated, modified, supplemented or replaced by this Section 6.17(a) and references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, restated, modified, supplemented or replaced by this Section 6.17(a). The parties agree that Parent may assign the Equity Commitment Letters and/or the Guarantees, in whole or in part, on the terms and subject to the conditions set forth in Section 6.17(a) of the Parent Disclosure Schedule (any such assignment, an “Equity Assignment,” and the date thereof, the “Equity Assignment Date”).
(b) Each of Parent and Merger Sub shall use its reasonable best efforts to (iA) maintain in full force and effect the Financing CommitmentsCommitment Letters, (iiB) satisfy on a timely basis (or obtain the waiver oftaking into account Section 2.01) all conditions applicable to Purchaser funding in the Financing Commitments that are within its control Commitment Letters and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, including using its reasonable best efforts to cause the Persons committing to fund the Financing to fund the Financing at the Closing, (vC) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, Commitment Letters and (viD) otherwise cause comply with its obligations under the Lenders Financing Commitment Letters. Without limiting the foregoing, Parent and Merger Sub shall promptly notify the Company in writing if at any time prior to fund on the Applicable Closing Date (i) any Financing Commitment Letter is terminated for any reason, (ii) any Person party to any Financing Commitment Letter indicates in writing that it will not provide, or it refuses to provide, all or any portion of the Financing, (iii) Parent or Merger Sub or, to the knowledge of Parent or Merger Sub, any other Person party to the Financing (Commitment Letters defaults or a portion thereof) required to consummate breaches any of the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and or conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in any Financing Commitment Letter, (iv) any event occurs that, with or without notice or lapse of time or both, would reasonably be expected to result in a default or breach of any of the terms or conditions set forth in any Financing Commitment Letter, or (v) Parent or Merger Sub receives any written notice or other written communication with respect to any (A) early termination of, repudiation by any Person party to or material default or material breach under any Financing Commitment Letter or (B) material dispute or disagreement between or among any Persons party to the Financing Commitments. Upon Commitment Letters with respect to the obligation to fund the Financing on the Closing Date in an amount necessary to fund the Required Amount.
(c) Prior to the Closing, the Company shall, and shall cause its Subsidiaries and use its reasonable request best efforts to cause its and their respective Representatives to, provide such reasonable cooperation as is customary and reasonably requested by Parent in connection with the obtaining and arranging of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Debt Financing. Without limiting the generality of the foregoing, Purchaser such reasonable best efforts in any event shall give include:
(i) participating in a reasonable number of meetings (including meetings with prospective Debt Financing Sources), presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable and mutually agreed times and with reasonable advance notice;
(ii) to the Sellers prompt notice: extent required by the Debt Commitment Letter, facilitating the pledging of, and perfection of security interests in, collateral, effective no earlier than the Effective Time;
(iii) furnishing Parent as promptly as reasonably practicable the Company Financial Information and, following the delivery of a request therefor to the Company by Parent (which notice shall state with specificity the information requested), such other financial and other information regarding the Company and its Subsidiaries as is reasonably requested by Parent or the Debt Financing Sources and as is customarily required in connection with financings of a type similar to the Debt Financing;
(iv) in each case following Parent’s reasonable request, assisting Parent and Merger Sub in the preparation of (A) upon becoming aware of any confidential information memoranda (including a version that does not include material breach or default (or any event or circumstance that, non-public information) and other customary marketing materials required in connection with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or financings similar to the Knowledge of Purchaser, any other party to any Debt Financing Commitment or definitive document related to the Financing; and (B) materials for rating agency presentations;
(v) following Parent’s reasonable request, using commercially reasonable efforts to cause directors and officers who will continue to hold such offices and positions from and after the Effective Time to execute and provide resolutions or consents of the receipt of any written notice or other written communication from any Person Company and its Subsidiaries with respect to any entering into the Definitive Financing Agreements and otherwise as necessary to authorize consummation of the Debt Financing; provided that no such resolution or consent shall become effective until the Effective Time;
(xvi) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related providing (A) customary authorization and representation letters to the Debt Financing Sources with respect to marketing materials from a senior officer of any provisions of any Financing Commitment or any definitive document related the Company (which authorization and representation letters will become effective before the Effective Time) to the Financing or (y) material dispute or disagreement between or among any parties to any Financing extent required in the Debt Commitment or any definitive document related to the Financing; Letter and (CB) a certificate of the chief financial officer of the Company in the form set forth on Annex I to Exhibit C of the Debt Commitment Letter (as in effect on the date hereof) with respect to solvency matters;
(vii) if for any reason Purchaser believes in good faith that requested by Parent, providing (xA) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within at least five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions prior to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expenseClosing Date, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial documentation and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the businessCompany and its Subsidiaries as is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, operations, financial projections and prospects of Purchaser and including without limitation the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the LendersPATRIOT Act, to the extent reasonably requested by Purchaser Parent in writing at least nine (including 9) Business Days prior real estate title commitmentsto the anticipated Closing Date and (B) a certification regarding beneficial ownership as required by 31 C.F.R. §1010.230 to any Debt Financing Source that has requested such certification, surveys, environmental reports and similar information), to the extent requested by Parent in writing at least five (ii5) assist Business Days prior to the anticipated Closing Date;
(viii) assisting reasonably in the preparation and execution of bank information memoranda necessary and similar documents customary Definitive Financing Agreements (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase security agreements, indentures, currency or interest hedging agreements mortgages and/or guarantees and the schedules and exhibits thereto) in connection with the Debt Financing or other agreementscertificates or documents as may reasonably be requested by Parent, including in each case, to be held in escrow pending release by refraining from entering into any competing financing transactionsthe Company at, and subject to the occurrence of, the Effective Time; and
(vix) use to the extent required in the Debt Commitment Letter, using commercially reasonable efforts to have ensure that the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably syndication efforts with the Lenders’ due diligence, respect to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Debt Financing and (viii) assist Purchaser and the Lenders to benefit materially from the existing lending and investment banking relationships of the Sellers Company, it being understood and their Affiliates; provided, however, agreed that no requested (x) such cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or not unreasonably interfere with the ongoing operations of Sellers the Company or any of its Affiliates and (y) the provisions set forth in this Section 6.17(c) represent the sole obligation of the Company and its Affiliates with respect to the Debt Financing and no other provision of this Agreement (including the exhibits and schedules hereto) or the Debt Commitment Letter will be deemed to expand such obligations. All non-public or otherwise confidential information regarding the Company or its Affiliates obtained by Parent or Merger Sub or their Representatives pursuant to this Section 6.17(c) shall be kept confidential in accordance with the Confidentiality Agreement, as modified by Section 6.19. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company or its Subsidiaries in any respect.
(d) Notwithstanding anything herein to the contrary, (i) no directors or managers of the Company or its Affiliates (other than any director or manager who is continuing as a director or manager of any the Company or its Subsidiaries following the consummation of the Transactions) shall be required to pass resolutions or consents to approve or authorize the execution or delivery of the Debt Financing or to execute, deliver or enter into, or perform any agreement, certificate, arrangement, document or instrument with respect to the Debt Financing (other than the documents to be delivered pursuant to Section 6.17(c)(vi) and the Sellers prepayment and termination notices contemplated by Section 6.24), including any definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”), (ii) no obligation of the Company, its Affiliates or any of their respective Representatives undertaken pursuant to the foregoing shall not be effective until Closing (other than the authorization and representation letters to be delivered pursuant to Section 6.17(c)(vi)) and the prepayment and termination notices contemplated by Section 6.24), and (iii) none of the Company, its Affiliates or any of their respective Representatives shall be required to (A) be required to pay any commitment or other similar feefee in connection with the Debt Financing or incur any other cost or expense that is not promptly reimbursed by Parent in connection with the Debt Financing, (B) have take any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related actions to the Financingextent such actions would unreasonably interfere with the ongoing business or operations of the Company and its Affiliates, or (C) incur take any actions that would conflict with or violate the Company’s or its Affiliates’ organizational documents or any Laws, or that would reasonably be expected to result in a violation or breach of, or default under, any material Contract to which any of them are a party or by which any of their assets are bound, (D) give to any other Person any indemnities in connection with the Financing that are effective prior to the Closing or (E) take any actions that would cause any representation or warranty in this Agreement to be breached or that would cause any closing condition set forth in Article 7 to fail to be satisfied or that would otherwise cause a breach of this Agreement. Nothing contained in this Section 6.17 or otherwise shall require the Company or its Affiliates to be an issuer or other obligor with respect to the Debt Financing prior to the Effective Time.
(e) Notwithstanding this Section 6.17 or anything else to the contrary in this Agreement, but subject to, and without limiting the effect of, Section 9.09, Parent and Merger Sub each acknowledges, affirms and agrees that it is not a condition to the Closing or to any of its other obligations under this Agreement that Parent or Merger Sub obtain any debt, equity or other financing for or related to any of the transactions contemplated by this Agreement (including, without limitation, all or any portion of any Financing).
(f) Each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees that the only obligations of the Company or any of its Affiliates or Representatives with respect to any portion of the Financing prior to the Effective Time are the obligations expressly set forth in this Agreement. Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket expense unless costs and expenses incurred by the Company, its Affiliates or their respective Representatives in connection with such expense is advanced cooperation by the Company or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right any of set-off, its Affiliates and shall indemnify and hold harmless Sellers the Company, its Affiliates and their respective subsidiaries and Representatives from for and against any and all Losses liabilities, losses, obligations, damages, costs and expenses of any kind (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due and whether in contract, tort, strict liability or otherwise) suffered or incurred by them in connection with (1) the arrangement of any Financing, any alternative financing, any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) 6.17 and any information utilized in connection therewith therewith, except, in each case, to the extent resulting from the gross negligence, fraud or willful misconduct of Company or any of its Subsidiaries or Representatives (other than information relation to Sellers approved by Sellers for use thereinthe obligations set forth in this subsection (f) collectively, the “Reimbursement Obligations”). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Financing. Each applicable Landlord shall be entitled to encumber one or more of its Hotels with a Mortgage on commercially reasonable terms and in such event, such Landlord, the applicable Owner and Manager shall be required to execute and deliver, and such Landlord agrees to require Mortgagee to execute and deliver, an instrument (aa “Subordination Agreement”) Purchaser which shall use its reasonable best efforts to takebe recorded in the jurisdiction where any such encumbered Hotel is located, which provides that:
A. This Agreement and any extensions, renewals, replacements or cause to be takenmodifications thereto, and all actions right and interest of Manager in and to dosuch Hotel, or cause to shall be done, all things necessary, proper or advisable to arrange subject and obtain the Financing as promptly as reasonably practicable on the terms and subject only subordinate to the conditions contained Mortgage; and
B. If there is a foreclosure of a Mortgage in connection with which title or possession of such Hotel is transferred to the Financing Commitments. Purchaser shall not permit any amendment Mortgagee (or modification its designee) or to be made to, a purchaser at foreclosure or any waiver of any provision to a subsequent purchaser from the Mortgagee (or remedy under, the Financing Commitments from its designee) (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality each of the foregoing, Purchaser a “Subsequent Holder”), Manager shall use reasonable best efforts to (i) maintain not be disturbed in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under this Agreement, so long as (a) no Manager Event of Default (beyond the Financing Commitments in applicable notice and cure period, if any) has occurred thereunder which entitles the event of a breach or other failure applicable Owner to fund by a Lender that impedes or delays the Applicable Closingterminate this Agreement, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior the applicable Lease has not been terminated as a result of a monetary default which arises from acts or failure to the Applicable Closingact by Manager pursuant to this Agreement, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant such Subsequent Holder shall not be (a) liable in any way to Manager for any act or omission, neglect or default of the prior Landlord or Owner (b) responsible for any monies owing or on deposit with any prior Landlord or Owner to the credit of Manager (except to the extent actually paid or delivered to such Subsequent Holder), (c) subject to any counterclaim or setoff which theretofore accrued to Manager against any prior Landlord or Owner, (d) bound by any modification of this Section 7.05(bAgreement subsequent to such Mortgage which was not approved by the Mortgagee, (e) shall delay the Applicable Closing, liable to Manager or unreasonably interfere with the ongoing operations of Sellers beyond such Subsequent Holder’s interest in such Hotel and the Sellers shall not (A) be required to pay any commitment or other similar feerents, (B) have any Liability under any credit agreementincome, note purchase agreementreceipts, indenturerevenues, hedging agreement or other agreement or document related to the Financingissues and profits issuing from such Hotel, or (Cf) incur required to remove any outPerson occupying such Hotel or any part thereof, except if such person claims by, through or under such Subsequent Holder. If a Lease is terminated as a result of a non-of-pocket expense unless such expense is advanced or simultaneously reimbursed monetary default which was not caused by Purchaser (without set-off). Purchaser shall, without the right a Manager Event of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser Default pursuant to the terms of this Section 7.05(b) Agreement or in connection with such Subsequent Holder succeeds to the arrangement interest of the Financing applicable Owner thereunder, the Mortgagee or (2) any information utilized in connection therewith (other than information relation Subsequent Holder, as applicable, and Manager shall agree that the applicable Hotel will continue to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant be subject to this Section 7.05(b) shall Agreement or a stand-alone agreement with respect to such Hotel on substantially the same terms and provisions as this Agreement (but neither the Mortgagee nor Subsequent Holder will be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure responsible to potential investors as required in connection with the Financing subject to customary confidentially protectionspay past due amounts hereunder).
Appears in 2 contracts
Sources: Master Management Agreement (Service Properties Trust), Master Management Agreement (Service Properties Trust)
Financing. (a) Purchaser The Company shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closingefforts, and (vi) otherwise shall cause the Lenders its Subsidiaries to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provideefforts, and shall use their its commercially reasonable efforts to cause their Affiliates its and their its Subsidiaries’ respective officers, directors, employees employees, accountants, consultants, legal counsel, agents and agents to provideother representatives (collectively, the “Company Representatives”) to, at PurchaserParent’s sole cost and expense, provide all reasonable cooperation that is reasonably necessary or customary and reasonably requested by Parent to assist Parent in the arrangement of bank financing and/or bond offerings for the purpose of financing the Merger, the fees and expenses incurred in connection therewith 74 and the other transactions contemplated hereby (the “Debt Financing”), including assisting with the preparation of materials for presentations, memoranda and similar documents required in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Debt Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested (x) nothing herein shall require such cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not extent it would (A) be required to pay any commitment or other similar feeunreasonably disrupt the conduct of the Company’s and the Subsidiaries’ respective businesses, (B) have require the Company or any Liability under of the Subsidiaries or any credit agreement, note purchase agreement, indenture, hedging agreement of the Company Representatives to pay any fees or other agreement expenses or document related otherwise incur any liability or give any indemnities prior to the FinancingEffective Time (except to the extent any such fee or expense is conditioned on the consummation of the Merger or Parent has advanced the amount of such fees, expenses or liabilities to the Company or the Subsidiaries), and (C) require the preparation or delivery of (i) financial statements, other than those contemplated by Sections 5.1(c) and 5.1(d), or (Cii) incur pro forma financial information or forecasts of the Company and the Subsidiaries and (y) any out-of-pocket expense unless documentation executed by the Company or any of its Subsidiaries shall not become effective until the consummation of the Closing. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent shall be permitted to share all information subject to such expense is advanced or simultaneously reimbursed agreement with its financing sources, subject to customary confidentiality undertakings by Purchaser such financing sources with respect thereto.
(without set-off). Purchaser shall, without the right of set-off, b) Parent shall indemnify and hold harmless Sellers each of the Company, the Subsidiaries and their respective subsidiaries Company Representatives and Representatives any Seller Indemnified Party from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the arrangement of the Debt Financing and the performance of their respective obligations under this Section 5.17. Parent shall, promptly upon request of Purchaser pursuant to this Section 7.05(bthe Company, reimburse the Company and the Subsidiaries for all out-of-pocket costs and expenses incurred by the Company or the Subsidiaries (including those of their respective Company Representatives) or in connection with the arrangement cooperation required by this Section 5.17.
(c) Each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees that (i) the obtaining of the Debt Financing or (2) any information utilized in connection therewith (other than information relation is not a condition to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All materialthe Closing, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.and
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement
Financing. (a) Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment if such amendment, modification, waiver or replacement (i) (A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing, in each case in a manner that would reasonably be expected to (1) delay or prevent the Closing, (2) delay or impair the availability of the Debt Financing at Closing or impede the satisfaction of the conditions to obtaining the Debt Financing at Closing, or (3) otherwise adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Financing Commitment or the definitive agreements with respect thereto (collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.11, Purchaser may amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment), or (ii) results in the early termination of the Debt Financing Commitment, and 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, proper or advisable to arrange and obtain consummate the Debt Financing as promptly as reasonably practicable on the terms and subject only conditions described in the Debt Financing Commitment and to cause the conditions described in clause (y) of the final proviso to the conditions contained definition of “Marketing Period” set forth in the Financing Commitments. Purchaser shall not permit any amendment or modification Section 1.01 to be made tosatisfied as promptly as practicable, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using its reasonable best efforts to (iA) maintain in effect the Debt Financing CommitmentsCommitment (including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to Closing, (iiB) satisfy on a timely basis (or obtain the a waiver of) all conditions and covenants applicable to Purchaser in to obtaining the Debt Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunderat Closing as set forth therein, (iiiC) negotiate with the Lenders negotiate, execute and other third parties and enter into deliver definitive agreements with respect to the such Debt Financing on the terms and subject only to conditions (including the conditions “flex” provisions) contemplated by the Debt Financing CommitmentsCommitment (and provide copies thereof to Seller), (ivD) fully pay any and all commitment fees or other fees required by the Debt Financing Commitment and (E) upon satisfaction of the conditions set forth in the Debt Financing Commitment, consummate the Debt Financing (or a portion thereof) at or prior to Closing. In the Applicable Closing, event any portion of the Debt Financing becomes unavailable on the terms and conditions (vincluding any “flex” provisions) enforce its rights under the Financing Commitments contemplated in the event Debt Financing Commitment, Purchaser shall promptly notify Seller and 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, proper or advisable to arrange to obtain alternative financing from alternative sources (x) with conditions to the funding of a breach or other failure the Debt Financing not materially less favorable to fund by a Lender that impedes or delays the Applicable Closing, interests of Seller than those included in the Debt Financing Commitment and (viy) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required in an amount sufficient to consummate the transactions contemplated hereby, including the payment of the Estimated Cash Consideration, the amounts to be consummated at paid pursuant to Section 3.05 (if any) and all related fees and expenses promptly following the Applicable occurrence of such event, and in any event prior to or on the Closing (including taking enforcement action Date. Purchaser shall promptly deliver to cause the Lenders Seller true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Seller with any portion of the Debt Financing); provided, that . Purchaser shall not be required keep Seller reasonably informed and in reasonable detail with respect to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any all material developments relating to concerning the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: promptly (Aand, in any event, within one (1) upon becoming aware Business Day) notify Seller in writing (1) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, both could reasonably be expected to give rise to any material breach or default) by Purchaser, or any party to the Knowledge of Purchaser, any other party to any Debt Financing Commitment or the definitive document related to the Financing; agreements with respect thereto, (B2) of the receipt by Purchaser or any of its Affiliates or their respective employees, agents or representatives of any written notice or other written communication from any Person with respect to any (xA) actual or potential breach, default, termination or repudiation by any party to any the Debt Financing Commitment or any definitive document agreement related thereto or any provision of the Debt Financing contemplated pursuant to the Financing of any provisions of any Debt Financing Commitment or any definitive document agreement related thereto (including any proposal by any lender named in the Debt Financing Commitment or any definitive agreement related thereto to withdraw, terminate or make a material change in the terms of (including the amount of financing contemplated by) the Debt Financing Commitment) or (yB) material dispute or disagreement between or among any parties to any the Debt Financing Commitment or any definitive document agreement related to the Financing; thereto and (C3) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely possibility that it will not be able to obtain all or any portion of the financing contemplated in the Debt Financing Commitment on the terms, in the manner or from the sources contemplated by the Debt Financing Commitments Commitment or the definitive agreements related thereto. References in this Agreement to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitment as permitted by this Section 6.11 to be amended, modified or replaced (including, replacement with alternative financing and alternative financing commitments pursuant to this Section 6.11) and references to “Debt Financing Commitment” shall include such documents related as permitted by this Section 6.11 to be amended, modified or replaced (including replacement with alternative financing commitments pursuant to this Section 6.11), in each case from and after such amendment, modification or replacement. Prior to the consummation of the Debt Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide not, and shall not permit any information reasonably requested by the Sellers relating of its Subsidiaries, to accept any circumstance referred to in clause (A), (B) offer for all or (C) any substantial part of the immediately preceding sentence. capital stock of Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsBusiness.
(b) Prior to the Applicable Closing, the Sellers Seller and its Subsidiaries shall use their commercially reasonable best efforts to provideprovide to Purchaser, and shall use their commercially reasonable best efforts to cause their Affiliates respective employees, advisors and their respective officers, directors, employees and agents representatives to provide, at provide to Purchaser’s sole cost and expense, all reasonable cooperation that is reasonably requested by Purchaser in connection with the arrangement Debt Financing, including: (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective Financing Sources, investors and ratings agencies, and reasonably cooperating with the marketing efforts of Purchaser and its Financing Sources, in each case in connection with the Debt Financing, (ii) furnishing Purchaser and its Financing Sources with the Required Financial Information (it being understood that the failure to provide audited financial statements as of and for the year ended December 31, 2012 prior to March 30, 2013 shall not be deemed a breach of this Section 6.11(b)(ii)), (iii) assisting with the preparation of materials for rating agency presentations, bank information memoranda, and similar documents required in connection with the Debt Financing, (iv) assisting with the completion of the Financing definitive financing documents and in taking such steps as may be necessary to perfect the liens and security interests to be granted as security for the Debt Financing in the assets of the Business; provided, that any such liens or security interests do not attach or otherwise become effective prior to the occurrence of the Closing, (v) executing and delivering, on behalf of the Company and the Company Subsidiaries, any necessary pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Purchaser; provided that any obligations contained in all such agreements and documents shall be subject to the occurrence of the Closing and effective no earlier than the Closing, (vi) obtaining a certificate of the Chief Financial Officer of the Business with respect to solvency matters to the extent required by the Financing Sources, customary authorization letters with respect to the bank information memoranda and (vii) using reasonable best efforts to obtain legal opinions, surveys and title insurance at the expense of and as reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion on behalf of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their AffiliatesSources; provided, however, that no requested nothing herein shall require such cooperation pursuant either to this Section 7.05(b) shall delay support any financing other than a debt financing in the Applicable Closing, form of a secured credit facility or to the extent it would interfere unreasonably interfere with the ongoing Business or operations of Sellers Seller and its Subsidiaries; and provided, further, that Seller, its Affiliates and its and their respective officers, directors or employees shall not be required to authorize, execute, deliver or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing or that would be effective prior to the Closing. Seller, on behalf of the Business, hereby consents to the use of the Business’s logos in connection with the Debt Financing contemplated by the Debt Financing Commitment; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Business, Seller or its Affiliates. Seller agrees that it shall consent to Purchaser’s publicly furnishing to the SEC, on Item 7.01 of Form 8-K, Required Financial Information (that is listed in clause (1) of the definition of “Required Financial Information”) solely to the extent necessary to permit syndication of the Term Loan B to lenders that would not participate in such syndication if they were to receive material non-public information.
(c) If the Marketing Period ends before, but the Closing Date has not occurred by, February 28, 2013, then Seller shall prepare and deliver, by no later than February 28, 2013, the consolidated unaudited balance sheet and consolidated unaudited statements of operations, cash flows and shareholders’ equity of the Business as of and for the year ended December 31, 2012. If the Marketing Period ends before, but the Closing Date has not occurred by, March 30, 2013, then Seller shall prepare and deliver, by no later than March 30, 2013, the consolidated balance sheet and consolidated statements of operations, cash flows and shareholders’ equity of the Business as of and for the year ended December 31, 2012, accompanied by an unqualified report thereon of the independent accountants of the Business.
(d) None of Seller, its Affiliates (other than the Company and the Sellers Company Subsidiaries after the Closing) and its and their employees, agents or representatives shall not (A) be required to take any action that would subject such Person to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee, (B) have fee or make any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement other payment or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced other liability or simultaneously reimbursed by Purchaser (without set-off)provide or agree to provide any indemnity in connection with the Debt Financing or their performance of their respective obligations under this Section 6.11 and any information utilized in connection therewith. Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers Seller, its Affiliates and its and their respective subsidiaries employees, agents and Representatives representatives from and against any and all Losses liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Debt Financing and the performance of their respective obligations under this Section 6.11 or (2) any information utilized in connection therewith except to the extent arising from the gross negligence or willful misconduct of the Seller or its Affiliates. Purchaser shall, without set-off, promptly upon request of Seller, advance or reimburse (other than information relation to Sellers approved by Sellers as requested) Seller and its Affiliates for use therein). This indemnification shall survive termination all out-of-pocket costs (including those of this Agreement. All material, non-public information regarding Sellers its and their accountants, consultants, legal counsel, agents and other representatives) to be incurred or that have been incurred by Seller and its Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with their performance of this Section 6.11 or otherwise to support or cooperate with the Debt Financing.
(e) Prior to the Closing, Purchaser shall not (and shall not permit any of its Affiliates to) take any action, or enter into any transaction, or any agreement to effect any transaction that might reasonably be expected to (i) delay or impair the availability of the Debt Financing subject at Closing or impede the satisfaction of the conditions to customary confidentially protectionsobtaining the Debt Financing at Closing, or (ii) otherwise materially and adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Financing Commitment or the definitive agreements with respect thereto.
Appears in 2 contracts
Sources: Acquisition Agreement (Arris Group Inc), Acquisition Agreement (Arris Group Inc)
Financing. (ai) Purchaser Subject to the terms and conditions of this Agreement, each of Montage, New Holdco and Merger Sub 2 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, proper or advisable to arrange and obtain the Transaction Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained flex provisions and taking into account the Marketing Period) described in the Financing Commitments. Purchaser Commitment Letter at Closing (taking into account the Marketing Period), and shall not, without the prior written consent of Marigold (which consent shall not be unreasonably withheld, conditioned or delayed), permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Commitment Letter, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding of the Transaction Financing Commitments contemplated by the Commitment Letter (except for or satisfaction of the conditions precedent to the Transaction Financing) on the Closing Date in any material respect or (y) extend or permit the extension of the marketing period under the Commitment Letter (provided that, without the consent of Marigold, Montage, New Holdco and Merger Sub 2 may amend the Commitment Letter (x) to favorably modify pricing terms or add additional lenders, arrangers, bookrunners and agents or (y) to implement or exercise any of the “market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Commitment Letter). Montage shall promptly deliver to Marigold copies of any such amendmentsamendment, modifications modification or waivers whichreplacement. For purposes of this Section 6.12, individually references to “Transaction Financing” shall include the Transaction Financing contemplated by the Commitment Letter as permitted to be amended, modified or in the aggregatereplaced by this Section 6.12(a) and references to “Commitment Letter” shall include such documents as permitted to be amended, would not be reasonably expected to preventmodified or replaced by this Section 6.12(a).
(ii) Each of Montage, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser New Holdco and Merger Sub 2 shall use its reasonable best efforts (A) to (i) maintain in effect the Financing CommitmentsCommitment Letter, (iiB) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on Commitment Letter consistent in all material respects with the terms and subject only to conditions (including the conditions contemplated by flex provisions and taking into account the Financing Commitments, (ivMarketing Period) consummate contained in the Financing Commitment Letter (or on terms no less favorable (taken as a portion thereofwhole) at to Montage, New Holdco or prior to Merger Sub 2 than the Applicable Closing, terms and conditions (vincluding flex provisions) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable ClosingCommitment Letter), and (viC) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing satisfy (or obtain the waiver of) on a portion thereoftimely basis all conditions precedent to funding in the Commitment Letter and such definitive agreements thereto (taking into account the Marketing Period and other than any condition where the failure to be so satisfied is a direct result of Marigold’s failure to furnish information described in Section 6.12(b)) required that are within Montage’s control and to consummate the transactions to be consummated Transaction Financing at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser Closing.. Montage shall not be required to agree to terms keep Marigold reasonably informed on a current basis and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Transaction Financing and any provide to Marigold copies of the material developments relating to definitive agreements for the Transaction Financing. Without limiting the generality of the foregoing, Purchaser Montage shall give the Sellers Marigold prompt notice: notice (Ax) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing of the Commitment Letter or definitive document agreements related to the Financing; Transaction Financing of which Montage becomes aware, (By) of the receipt of (A) any written notice or (B) other written communication communication, in each case from any Person Financing Source with respect to any (x) actual or potential material breach, default, termination or repudiation by any party to any Financing of the Commitment Letter or any definitive document agreements related to the Transaction Financing of any provisions of any Financing the Commitment Letter or any definitive document agreements related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Transaction Financing; , and (Cz) if at any time for any reason Purchaser Montage believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Transaction Financing on the termsterms and conditions, in the manner or from the sources contemplated by any of the Financing Commitments Commitment Letter or the definitive documents agreements related to the Transaction Financing. As soon as reasonably practicablepracticable after any notice by Montage to Marigold of the type described in the immediately preceding sentence, but in any event within five (5) two Business Days after of the date the Sellers deliver Marigold delivers to Purchaser Montage a written request, Purchaser Montage shall use reasonable best efforts to provide any information reasonably requested by the Sellers Marigold relating to any circumstance referred to in clause (Ax), (By) or (Cz) of the immediately preceding sentence. Purchaser shall refrain from taking; provided, directly that they need not provide any information believed to be privileged or indirectly, any action that is reasonably likely to result in the failure requested for purposes of any conditions contained in the Financing Commitments or any definitive agreement related theretolitigation. If all or any portion of the Transaction Financing becomes unavailable on for any reason, and such portion is reasonably required to pay the terms aggregate Cash Consideration, repay the Retired Debt and conditions pay all fees, expenses and other amounts contemplated in to be paid by Montage, New Holdco, Merger Sub 2 or the Financing CommitmentsMontage Surviving Corporation pursuant to this Agreement, Purchaser Montage, New Holdco and Merger Sub 2 shall use its their reasonable best efforts to arrange and obtain financing as promptly as practicable in replacement thereof alternative debt Transaction Financing from alternative sources in an amount sufficient to replace the sufficient, when taken together with available cash of Montage and any then-available Transaction Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions pursuant to the FinancingCommitment Letter, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and consummate the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to Mergers with terms and conditions with respect to any alternative financing that are, in the aggregate, not materially less favorable in any material respect (taken as a whole) to Purchaser Montage, New Holdco and Merger Sub 2 than those the terms and conditions (taken as a whole) set forth in the Financing Commitments.
Commitment Letter (b) Prior “Available Transaction Financing”), as promptly as reasonably practicable following the occurrence of such event. Montage shall deliver to Marigold true and complete copies of all commitment letters and fee letters pursuant to which any such alternative source shall have committed to provide any portion of the Transaction Financing. Notwithstanding anything in this Section 6.12 or elsewhere in this Agreement to the Applicable Closingcontrary, in no event shall the Sellers shall use their commercially “reasonable efforts best efforts” of Montage, New Holdco or Merger Sub 2 be deemed or construed to providerequire any such Person to, and no such Person shall use their commercially reasonable efforts be required to, pay any debt financing fees in the aggregate in excess of those contemplated by the Commitment Letter, or agree to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement conditionality or economic terms of the Financing as may be reasonably requested by Purchaser and debt financing that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith are (other than information relation to Sellers approved as specified in the preceding sentence) materially less favorable than those contemplated by Sellers for use the Commitment Letter or any related fee letter (including any “flex” provision therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Merger Agreement (Meredith Corp), Merger Agreement (Meredith Corp)
Financing. (a) Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment, without the prior written consent of Seller, if such amendment, modification, waiver or replacement (i)(A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount) to an amount that is below an amount that, assuming the accuracy of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Agreement and pay all fees and amounts in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or (C) otherwise expand, amend or modify any provision of the Debt Financing Commitment, in the case of this clause (C), in a manner that would reasonably be expected to (I) materially delay or prevent the Closing, (II) adversely impact in any material respect the ability of Purchaser to enforce its rights under the Debt Financing Commitment or the definitive agreements with respect thereto or (III) materially delay or impair the availability of the Debt Financing at the Closing or materially impede the satisfaction of the conditions to obtaining the Debt Financing at the Closing (clauses (A), (B) and (C), collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.12, Purchaser may amend the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (2) in connection with a Permanent Financing or an alternative financing as contemplated by clause (b) of this Section 6.12) or (ii) results in the early termination of the Debt Financing Commitment, other than any termination of the Debt Financing Commitment in accordance with its terms upon consummation of Permanent Financing in accordance with clause (b) of this Section 6.12.
(b) Purchaser 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, proper or advisable to arrange and obtain the proceeds of the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Debt Financing Commitments. Purchaser shall not permit any amendment or modification to be made toCommitment, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using its reasonable best efforts to (i) maintain in effect the Debt Financing CommitmentsCommitment (including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to the Closing, (ii) satisfy on a timely basis (or obtain the a waiver of) all conditions applicable to Purchaser obtaining the Debt Financing at the Closing as set forth in the Debt Financing Commitments Commitment (other than those that are solely within the control of Seller and its control Subsidiaries) and otherwise comply with all of its covenants and other material obligations thereunder, (iii) negotiate with the Lenders negotiate, execute and other third parties and enter into deliver definitive agreements (which with respect to any bridge facility documentation shall not be required until reasonably necessary in connection with the funding of the Debt Financing) with respect to such Debt Financing on the terms and subject only to conditions (including the conditions “flex” provisions) contemplated by the Debt Financing CommitmentsCommitment (and provide executed copies of such definitive agreements to Seller) or on other terms in the aggregate materially no less favorable to Purchaser or the interests of Seller, as to conditionality, than the terms and conditions in the Debt Financing Commitment (provided that in no event shall any such definitive agreement contain terms (other than those included in the Debt Financing Commitment) that would constitute Restricted Financing Commitment Amendments), (iv) fully pay any and all commitment fees or other fees required by the Debt Financing Commitment, and (v) upon satisfaction of the conditions set forth in the Debt Financing Commitment, consummate the Debt Financing (or a portion thereof) at or prior to the Applicable Closing, (v) Closing and enforce its rights under the Debt Financing Commitments in Commitment; provided, however, if Purchaser has raised alternative financing contemplated by the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and Debt Financing Commitment (vian “Permanent Financing”) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required funds sufficient to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); providedClosing, that Purchaser shall not be required have no obligation to agree to arrange any such Debt Financing on the terms and conditions described in such Debt Financing Commitment or otherwise so long as (A) Purchaser shall promptly notify Seller of any such Permanent Financing together with a written certificate to Seller that are, the terms of Section 6.12 shall apply mutatis mutandis to such Permanent Financing as if it were the Debt Financing and (B) the terms and conditions of such Permanent Financing (x) that are applicable prior to or relate to the conditions to the Closing are not materially less favorable to Seller than the original Debt Financing and (y) would not delay or prevent the Closing as compared to the Debt Financing. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the aggregateDebt Financing Commitment, Purchaser shall promptly notify Seller and 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, proper or advisable to obtain alternative financing from alternative sources for such portion on terms and conditions (x) not materially less favorable to Purchaser than the Debt Financing Commitment, (y) with conditions to the funding of the alternative financing not materially less favorable to the interests of Seller than those set forth included in the Debt Financing Commitments. Upon Commitment, and (z) in an amount sufficient to consummate the reasonable request transactions contemplated hereby, including the payment of the SellersEstimated Cash Purchase Price, the amount to be paid pursuant to Section 2.04 and all related fees and expenses promptly following the occurrence of such event, and in any event prior to or on the Closing Date, and, if obtained, Purchaser shall inform the Sellers promptly deliver to Seller true and complete copies of a new financing commitment pursuant to which any such alternative source shall have committed to provide Purchaser with any portion of the status of its efforts Debt Financing. Purchaser shall keep Seller reasonably informed and in reasonable detail with respect to arrange the Financing and any all material developments relating concerning the Debt Financing or alternative financing, including advising and updating Seller, in a reasonable level of detail, with respect to status and proposed closing date of the FinancingDebt Financing or alternative financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: promptly notify Seller in writing of (A1) upon becoming aware of any material breach or default (by any party to the Debt Financing Commitment of which Purchaser has become aware, which breach or any event or circumstance that, with or without notice, lapse of time or both, default if not cured could reasonably be expected to give rise to result in the unavailability of the Debt Financing or any material breach or default) by Purchasertermination of any of the Debt Financing Commitment, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B2) of the receipt by Purchaser or any of its Affiliates or their respective employees, agents or representatives of any written notice or other written communication from any Person with respect to any (xI) actual or potential breach, default, termination or repudiation by any party to any Debt Financing Commitment or any definitive document agreement related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing thereto or (yII) material dispute or disagreement between or among any parties to any Debt Financing Commitment or any definitive document agreement related thereto, in each case which could reasonably be expected to result in the Financing; unavailability of the Debt Financing or any termination of any of the Debt Financing Commitment, and (C3) if for any reason Purchaser believes in good faith that (xI) there is a reasonable likelihood (or there is reasonably likely to be be) a material dispute or disagreement between or among any parties to any the Debt Financing Commitment or any definitive document agreement related thereto which could reasonably be expected to result in the unavailability of the Debt Financing or any termination of any of the Debt Financing Commitment or (yII) it there is reasonably likely a material possibility that it will not be able to obtain all or any portion of the financing contemplated in the Debt Financing Commitment on the terms, in the manner or from the sources contemplated by the Debt Financing Commitments Commitment or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement agreements related thereto. If any portion of References in this Agreement to “Debt Financing” shall include the financing contemplated by the Debt Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing Commitment as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under permitted by this Section 7.05(a) shall apply 6.12 to such be amended, modified or replaced (including, replacement with alternative financing and the agreements related thereto as if such alternative financing is the commitments pursuant to this Section 6.12) and references to “Debt Financing and any commitment related thereto is the Financing Commitments; providedCommitment” shall include such documents as permitted by this Section 6.12 to be amended, that Purchaser shall not be required modified or replaced (including replacement with alternative debt financing commitments pursuant to agree to terms and conditions with respect to any alternative financing that arethis Section 6.12), in the aggregateeach case from and after such amendment, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsmodification or replacement.
(bc) Prior Unless otherwise provided below, prior to the Applicable Closing, the Sellers Seller and its Subsidiaries shall use their commercially reasonable efforts provide to providePurchaser, and shall use their commercially reasonable best efforts to cause their Affiliates and their respective directors, officers, directorsemployees, employees consultants, agents, financial advisors, attorneys, accountants and agents other representatives (collectively, “Representatives”) to, in each case, use reasonable best efforts to provide, at provide to Purchaser’s sole cost and expense, all reasonable cooperation that is reasonably requested by Purchaser in connection with the arrangement Debt Financing or any debt or equity securities being issued in conjunction with or in lieu of all or a portion of the Debt Financing (collectively, the “Transaction Financing”), including using reasonable best efforts in connection with: (i) as promptly as reasonably practical, furnishing Purchaser with (A) the Required Information and (B) such other pertinent information (including financial information and other information to the extent necessary in the preparation of an information package regarding the Business, in each case, to the extent reasonably available to Seller and its Subsidiaries without undue burden and expense to Seller and its Subsidiaries, regarding the Transferred Entities and the Business as may be reasonably requested by Purchaser in writing, and that is in any case, solely to the extent necessary to permit Purchaser to prepare a preliminary offering memorandum for use in a customary “high-yield road show”, bank information memoranda, registration statement or prospectus for a debt or equity offering under the Securities Act, and similar document, to consummate the Transaction Financing, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, materials for a “high-yield road show” or other debt or equity road show, registration statement or prospectuses for a debt or equity offering, and similar documents required in connection with Purchaser’s efforts to obtain the Transaction Financing, including to (iiii) provide readily-available financial and other information relating to before the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the LendersClosing and, to the extent reasonably necessary to allow Purchaser or any of its Affiliates to consummate a bond offering contemplated by the Transaction Financing, using reasonable best efforts to obtain (A) customary comfort letters from, and participation in customary due diligence sessions with, its independent accountants in connection with the use of the Business’ and the Transferred Entities’ and financial statements and the Required Information in offering documents for a bond or equity offering contemplated by the Transaction Financing, at the expense of and as reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate on behalf of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters Financing Sources and (including consents of accountants for use of their reports in any materials relating to the FinancingB) or other documents and instruments relating to guarantees and other matters ancillary to the Transaction Financing as may be reasonably requested by PurchaserPurchaser as necessary and customary in connection with the Transaction Financing, (iv) using reasonable best efforts to assist Purchaser in the connection with its preparation of, entering into and, upon reasonable prior notice of pro forma financial information to the extent related required for the Transaction Financing and to the participation be included in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactionsoffering documents, (v) use commercially reasonable efforts to have the independent accountants executing and delivering as of the Sellers provide their reasonable cooperation Closing, on behalf of the Transferred Entities and assistancethe Business, any necessary pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Purchaser; provided that any obligations contained in all such agreements and documents shall be subject to the occurrence of the Closing and effective no earlier than the Closing, (vi) cooperate cooperating reasonably with the LendersFinancing Sources’ due diligence, to the extent customary and reasonablereasonable and participating in due diligence sessions, (vii) refrain from pursuing obtaining customary payoff letters, Lien terminations and instruments of discharge necessary to be delivered at the Closing to allow for the payoff, discharge or termination in full on the Closing Date of any financing transactions debt necessary to evidence the release of liens or guarantees, (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser that may delay, impede are necessary or otherwise adversely affect customary to permit the consummation of the Transaction Financing and (viiiix) assist Purchaser providing all documentation and other information about the Business and the Lenders Transferred Entities, to benefit from the existing lending relationships of extent required by applicable “know your customer” and anti-money laundering rules and regulations including the Sellers and their AffiliatesUSA PATRIOT Act, in each case, to the extent reasonably requested at least ten (10) Business Days prior to the anticipated Closing Date; provided, however, that no requested cooperation pursuant Seller, its Subsidiaries and their respective Representatives shall not be required to this Section 7.05(bauthorize, execute, deliver or perform under any agreement with respect to the Transaction Financing that (A) shall delay the Applicable Closing, or unreasonably interfere interferes with the ongoing operations business of Sellers Seller or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached in a manner that would cause any closing condition to Purchaser’s obligations to fail to be satisfied or otherwise causes the breach of this Agreement (other than those conditions that by their terms are to be satisfied at the Closing); (C) requires Seller or its Subsidiaries to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Sellers Transaction Financing, other than solely in the case of the Transferred Entities, any liability that is contingent upon the occurrence of the Closing or that would be effective only on and after the Closing; (D) requires Seller or its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Transaction Financing or adopt resolutions approving the agreements, documents, instruments and other actions pursuant to which the Transaction Financing is obtained; (E) requires Seller or its Subsidiaries to give any legal opinion or other opinion of counsel; or (F) requires Seller or its Subsidiaries to take any action that is prohibited or restricted by, or will conflict with or violate, its organizational documents. Neither Seller nor any of its Subsidiaries shall not (A) be required to pay any commitment or other similar fee, (B) have fees or make any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced payment or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against incur any and all Losses suffered other liability or incurred by them in connection with (1) obligation or provide or agree to provide any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or indemnity in connection with the arrangement Transaction Financing or any of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required foregoing in connection with the Transaction Financing subject in connection with assisting Purchaser in arranging the Transaction Financing or as a result of any information provided by Seller, its Subsidiaries or any of their respective Affiliates or Representatives in connection with the Transaction Financing (other than the Financial Statement Preparation Expenses). Seller, on behalf of the Business, hereby consents to customary confidentially protections.the use of the Business’ logos in connection with the D
Appears in 2 contracts
Sources: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Financing. (a) Purchaser Each of Parent and Merger Sub shall use its reasonable best efforts use, and shall cause their Affiliates to use, their respective Best Efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to conditions described in the Financing Documents, including using their respective Best Efforts to: (i) maintain in effect the Financing Documents, (ii) enter into definitive agreements with respect thereto on a timely basis (taking into account the expected timing of the Marketing Period) on the terms and conditions contained in the Commitment Letter and the Fee Letter (including any “flex” provisions contained in the Fee Letter), (iii) satisfy, or cause their Affiliates to satisfy, on a timely basis (taking into account the expected timing of the Marketing Period) (or, if deemed advisable by Parent, seek the waiver of) all conditions applicable to Parent, Merger Sub or their respective Affiliates in the Financing Commitments. Purchaser Documents that are within their control and (iv) consummate the Financing at or prior to the Closing, including by enforcing their respective rights under the Financing Documents (including by seeking damages or taking other enforcement actions, including seeking an order of specific performance).
(b) Parent shall not permit agree to, or permit, any amendment amendments, replacements, supplements or modification to be made modifications to, or any waiver waivers or assignment of any provision or remedy commitments under, the Financing Commitments Commitment Letter (except for it being understood that the exercise of any “market flex” provisions contained in the Fee Letter shall be deemed not to be any such amendmentsamendment, modifications replacement, supplement, modification, waiver or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactionsassignment) without the prior written consent of the Sellers, which Company (such consent shall not to be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser Parent shall not have the right to amend, replace, supplement or otherwise modify, or waive any of its rights under the Commitment Letter, and/or substitute or add other equity or debt financing, and/or permit the parties to the Commitment Letter to assign their commitments thereunder to other equity or debt financing sources without the prior written consent of the Company if, and only if, such amendments, modifications, waivers, assignments or replacements would not: (i) reduce the aggregate amount of the Financing to an amount committed that is below the amount required, together with other financial resources of Parent and Merger Sub, including cash, cash equivalents and marketable securities of Parent and Merger Sub on the Closing Date, to consummate the Merger on the terms contemplated by this Agreement; (ii) adversely impact in any material respect the ability of Parent and/or Merger Sub to enforce their rights under the Financing Documents; (iii) amend or modify the then-existing conditions precedent to funding of the Financing in a manner that would make such conditions less likely in any material respect to be required satisfied by the Closing or impose new or additional conditions precedent to agree funding of the Financing; (iv) otherwise be reasonably expected to prevent or materially delay or impair the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement; provided that Parent shall have the right to permit any Financing Source to assign its commitment under the Commitment Letter to other financing sources solely to the extent consistent with the other terms of this Section 6.16(b) and upon the Company’s written request, Parent shall promptly deliver to the Company copies of any amendment, replacement, supplement, modification or waiver of the Financing Documents.
(c) In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter and the Fee Letter (including any “market flex” provisions that areare contained therein) (other than as a result of a breach by the Company of any representation, warranty or obligation hereunder with respect to which Parent has provided written notice to the Company) and such portion is necessary to consummate the transactions contemplated by this Agreement, (i) Parent shall promptly so notify the Company and (ii) Parent and Merger Sub shall use their respective Best Efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to (A) promptly obtain (in light of the expected timing of the Marketing Period) the Financing or such portion of the Financing from alternative sources, which may include one or more of a senior secured debt financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, in an amount sufficient, when added to any portion of the Financing that is available, to pay in cash all amounts required to be paid by Parent in connection with the transactions contemplated by this Agreement (“Alternative Financing”) and (B) promptly obtain a new debt financing commitment letter (the “Alternative Commitment Letter”) and negotiate and enter into a definitive agreement with respect thereto that provides for debt financing on terms and conditions (including conditions to draw and flex provisions) not materially less favorable than those in the Commitment Letter and the Fee Letter (including any “market flex” provisions that are contained therein), in the aggregate, materially less favorable to Purchaser than those set forth Parent and which will not result in the Financing Commitments. Upon the reasonable request a material delay of the Sellers, Purchaser shall inform the Sellers consummation of the status of its efforts transactions contemplated by this Agreement. In such event, the term “Financing” as used in this Agreement shall be deemed to arrange include any Alternative Financing, and the Financing and term “Commitment Letter” as used in this Agreement shall be deemed to include any material developments relating Alternative Commitment Letter.
(d) Prior to the Financing. Without limiting the generality of the foregoingClosing, Purchaser Parent shall (i) give the Sellers Company prompt notice: notice (A) upon becoming aware of any material breach or default (or of any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaserprovision of, or to termination by any party thereto of the Knowledge of PurchaserFinancing Documents, any other party to any Financing Commitment or definitive document related to the Financing; (B) of upon the receipt of any written notice or other written communication from any Person party to the Financing Documents with respect to any (x) actual threatened breach or potential breach, default, termination thereof by such Person or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely expected that it Parent or Merger Sub will not be able to obtain all or any portion of the Financing on the terms, terms and conditions of the Financing Documents (including any “market flex” provisions contained in the manner Fee Letter) and such portion is necessary to consummate the transactions contemplated by this Agreement and (ii) keep the Company reasonably informed, at the Company’s request, of material developments in Parent’s and Merger Sub’s efforts to arrange the Financing.
(e) Nothing in this Section 6.16 or any other provision of this Agreement shall require, and in no event shall Parent or Merger Sub be required to (i) seek the Financing from a source other than the sources Lenders or in any amount in excess of that contemplated by the Commitment Letter, (ii) amend or waive any term or condition of this Agreement, or (iii) commence any legal action or proceeding, subject to Section 9.7, against any Financing Commitments Source.
(f) Each of Parent and Merger Sub acknowledges and agrees that in no event shall the receipt or availability of any funds or financing (including, for the definitive documents related to avoidance of doubt, the Financing. As soon as reasonably practicable, but in ) by Parent or any event within five (5) Business Days after the date the Sellers deliver to Purchaser Affiliate or any other financing or other transaction be a written request, Purchaser shall provide any information reasonably requested by the Sellers relating condition to any circumstance referred to in clause (A), (B) of Parent’s or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and PurchaserMerger Sub’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsAgreement.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Merger Agreement (Cohu Inc), Merger Agreement (Xcerra Corp)
Financing. Parent has delivered to the Company a true and complete copy, as of the date of this Agreement, of an executed commitment letter to provide debt financing to Parent (aor Merger Sub) Purchaser shall use its reasonable best efforts in an aggregate amount set forth therein, subject to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only conditions thereof (the “Financing Commitment”), a portion of the proceeds of which shall be used to consummate the conditions contained in Merger and the Financing Commitmentsother transactions contemplated by this Agreement (the “Financing”). Purchaser shall not permit any amendment or modification to be made to, or any waiver As of any provision or remedy underthe date of this Agreement, the Financing Commitments (except for any such amendmentsCommitment, modifications or waivers which, individually or in the aggregateform delivered to the Company, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain has not been amended or modified, withdrawn or rescinded in effect the Financing Commitmentsany respect, (ii) represents the entire agreement between the parties, and (iii) is in full force and effect and is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. As of the date of this Agreement, subject to the accuracy of the representations and warranties of the Company set forth in Section 4.01, Parent has no reason to believe that it will be unable to satisfy on a timely basis (any term or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions condition to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) satisfied by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related theretoCommitment. If any portion Subject to the accuracy of the Financing becomes unavailable on representations and warranties of the terms and conditions contemplated Company set forth in Section 4.01(c), the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable proceeds from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, when funded in accordance with the Financing Commitment and Purchasertogether with available funds at the Company, are sufficient for the satisfaction of all of Parent’s obligations under this Section 7.05(a) shall apply Agreement, including the payment of the aggregate Merger Consideration and to such alternative financing pay all related fees and expenses. Notwithstanding anything in this Agreement to the agreements related thereto as if such alternative financing is contrary, the Financing and any commitment related thereto is Commitment may be superseded at the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in option of Parent after the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior date of this Agreement but prior to the Applicable ClosingEffective Time by a New Financing Commitment in accordance with Section 6.07. In such event, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the term “Financing Commitment” as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the this Agreement shall be deemed to include a New Financing by the Lenders, Commitment to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist then in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionseffect.
Appears in 2 contracts
Sources: Merger Agreement (Hirsch International Corp), Merger Agreement (Hirsch International Corp)
Financing. (a) Purchaser Parent and Merger Subsidiary shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment Commitment Letter or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, on other terms that would not be reasonably expected adversely impact the ability of Parent or Merger Subsidiary to preventconsummate the transactions contemplated hereby, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to (i) maintain negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained therein (including any “market flex” provisions) or on other terms reasonably acceptable to Parent and not in effect the Financing Commitmentsviolation of this Section 8.09, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Purchaser Parent in the Financing Commitments Commitment Letter that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with maintain in effect the Lenders and other third parties and enter into definitive agreements with respect to Commitment Letter until the Financing on the terms and subject only to the conditions transactions contemplated by the Financing Commitmentsthis Agreement are consummated, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable ClosingCommitment Letter, and (viv) otherwise cause subject to the Lenders to fund on terms and conditions contemplated by the Applicable Closing Date Commitment Letter, consummate the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (Closing. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter, and/or substitute other debt financing for all or any portion of the Financing from the same and/or alternative Financing Sources, including taking enforcement action without limitation to cause add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Lenders to provide Financing Commitment as of the Financing)date of this Agreement; provided, that Purchaser any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing shall not be required (i) impose any additional conditions precedent or expand upon the conditions precedent to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those Financing as set forth in the Financing Commitments. Upon Commitment Letter, (ii) adversely impact the reasonable request ability of Parent or Merger Subsidiary to enforce its rights against the other parties to the Commitment Letter or (iii) prevent or impede or delay the consummation of the SellersMerger and the other transactions contemplated by this Agreement. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter in its reasonable discretion; provided, Purchaser that Parent shall inform not reduce the Sellers Financing to an amount committed below the amount that is required, together with other financial resources of Parent and Merger Subsidiary including cash, cash equivalents and marketable securities of Parent, Merger Subsidiary, the Company and the Company’s Subsidiaries on the Closing Date, to consummate the Merger on the terms contemplated by this Agreement; and provided further, that such reduction shall not (i) impose any additional conditions precedent or expand upon the conditions precedent to the Financing as set forth in the Commitment Letter, (ii) adversely impact the ability of Parent or Merger Subsidiary to enforce its rights against the other parties to the Commitment Letter or (iii) prevent or impede or delay the consummation of the status Merger and the other transactions contemplated by this Agreement. For the avoidance of its efforts to arrange doubt, the syndication of the Financing and any material developments relating to the Financingextent permitted by the Commitment Letter shall not be deemed to violate Parent’s obligations under this Agreement. Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall give the Sellers Company prompt notice: (A) upon becoming aware of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, could would reasonably be expected to give rise to any material breach or material default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment Letter or definitive document related to the FinancingFinancing of which Parent or its Affiliates becomes aware; (B) of the receipt of any written notice or other written communication from any Person with respect to any any: (x) actual or potential material breach, material default, termination or repudiation by any party to any Financing Commitment Letter or any definitive document related to the Financing of or any provisions of any Financing the Commitment Letter or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment Letter or any definitive document related to the FinancingFinancing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any definitive agreement with respect thereto); and (C) if for any reason Purchaser Parent or Merger Sub believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments Commitment Letter or the definitive documents related to the Financing; provided, that in no event will Parent or Merger Subsidiary be under any obligation to disclose any information that is reasonably believed to be subject to attorney-client or similar privilege or that is requested for purposes of litigation. As soon as reasonably practicable, but in any event within five three (53) Business Days after the date the Sellers deliver to Purchaser Company delivers Parent or Merger Sub a written request, Purchaser Parent and Merger Subsidiary shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence, and subject to the proviso of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in In the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsCommitment Letter (including any “market flex” provisions), Purchaser Parent shall use its reasonable best efforts to arrange and to obtain alternative financing as promptly as practicable from alternative sources on terms and conditions not materially less favorable to Parent and Merger Subsidiary in an amount sufficient to replace consummate the transactions contemplated by this Agreement (any such alternative financing, any amended or substitute financing permitted by this Section 8.09(a), and the Financing, an “Available Financing”). In the event that on the final day of the Marketing Period (i) all or any portion of the Financing structured as promptly as practicable High Yield Financing has not been consummated, (ii) all closing conditions contained in Article 9 shall have been satisfied or waived (other than those conditions that by their nature will not be satisfied until the Closing) and without the imposition of any new or additional conditions and without any adverse amendment to existing (iii) all conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Bridge Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Commitment Letter have been satisfied, then Parent shall borrow under and use the proceeds of the Bridge Financing Commitments.
(bor such alternative bridge financing) Prior to replace such affected portion of the Applicable ClosingHigh Yield Financing on the Closing Date. Notwithstanding the foregoing or anything else set forth herein, the Sellers Company hereby acknowledges that it shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the have no claims (contractual or otherwise) against any Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information Source relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing Merger or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)
Financing. (a) Purchaser Parent shall use its reasonable best efforts to take, take all actions and to do or cause to be taken, all actions and to do, or cause to be done, done all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable proceeds of the Facilities on the terms and subject only to the conditions contained set forth in the Financing CommitmentsFacilities Agreement. Purchaser Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) Facilities Agreement without the prior written consent of PRE if such amendment, modification or waiver (i) reduces the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality aggregate amount of the foregoingFacilities by an amount or (ii) adversely expands, Purchaser amends or modifies any of the conditions precedent to the Facilities in a manner, in each case that would reasonably be expected to prevent or materially delay the ability of Parent to consummate the Closing on the Closing Date.
(b) Parent shall use reasonable best efforts to (i) maintain in effect satisfy (or, if deemed advisable by Parent, seek the Financing Commitments, (iiwaiver of) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments Parent that are within its control and otherwise comply with its covenants and other obligations thereunderas set forth in the Facilities Agreement, (iiiii) negotiate with upon satisfaction of such conditions, cause the Lenders and other third parties and enter into definitive agreements with respect to funding of the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) Facilities at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (viiii) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers PRE prompt notice: notice (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing Facilities Agreement of any provisions of any Financing Commitment or any definitive document related to the Financing which Parent has become aware or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (CB) if for any reason Purchaser Parent no longer believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing Facilities on the terms, terms set forth in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five Facilities Agreement.
(5c) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing Facilities necessary to consummate the Closing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsFacilities Agreement, Purchaser Parent shall promptly notify PRE and shall use its reasonable best efforts to arrange and to obtain alternative financing from alternative sources for such portion as promptly as practicable from alternative sources following such event on terms no less favorable to Parent as to conditionality than those contained in the Facilities Agreement and in an amount sufficient for Parent to replace consummate the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions Closing. If Parent proceeds with such alternative financing, it shall be subject to the Financing, and Purchaser’s same obligations under this Section 7.05(a) shall apply with respect to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(bforegoing clauses (a) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i(b) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters)the Facilities. For the avoidance of doubt, accounting comfort letters (including consents of accountants for use of their reports in any materials relating all references herein to the Financing) or other documents Facilities shall be deemed to include such alternative financing, and instruments relating to guarantees and other matters ancillary all references to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) Facilities Agreement shall be kept confidential by them in accordance with deemed to include the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsdefinitive agreement governing such alternative financing.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Exor S.p.A.), Merger Agreement (Partnerre LTD)
Financing. (a) The Debt Purchaser 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, proper or advisable necessary to arrange and obtain the proceeds of the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts including to (iA) maintain in effect the Financing Commitments, (iiB) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to the Debt Purchaser in to obtaining the Financing Commitments that are is within its control and otherwise comply with its covenants and other obligations thereunder(including by consummating the Equity Financing at or prior to the Closing), (iiiC) negotiate with to the Lenders and other third parties and extent not previously entered into, enter into definitive agreements with respect to the Financing thereto on the terms and subject only to the conditions described in or contemplated by the Financing Commitments, Commitments and (ivD) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, Closing (v) including by seeking to enforce its rights under the Financing Roll-Over Commitments in against the event of a breach or lenders and other failure to fund by a Lender that impedes or delays persons providing the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the FinancingRoll-Over Commitments); provided, that . The Debt Purchaser shall not be required to agree to terms and conditions that areor permit any amendment, in the aggregatereplacement, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellerssupplement or other modification of, Purchaser shall inform the Sellers of the status or waive any of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoingrights under, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shallin each case, without the right Company’s prior written consent (which consent shall not be unreasonably withheld or delayed), provided that any such amendment, replacement, supplement or other modification to the Roll-Over Commitments (i) does not involve any conditions to funding the Roll-Over that are not contained in, and satisfied on the date of setentry into, such amendment, replacement, supplement or other modification to the same extent as, the Roll-offOver Commitments and (ii) does not prevent, indemnify materially impede or materially delay the consummation of the Roll-Over or the transactions contemplated by this Agreement or the TDC Agreement; and hold harmless Sellers provided that the Debt Purchaser may replace and their respective subsidiaries and Representatives from and against amend the Roll-Over Commitments solely for the purpose of adding lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Roll-Over Commitments as of the date of this Agreement so long as such addition does not prevent, materially impede or materially delay the consummation of the Roll-Over or the transactions contemplated by this Agreement or the TDC Agreement. Upon any and all Losses suffered such amendment, replacement, supplement or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement modification of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them Commitments in accordance with this Section 5.10, the Confidentiality Agreement, except for disclosure to potential investors as required in connection with term “Financing Commitments” shall mean the Financing subject to customary confidentially protectionsCommitments as so amended, replaced, supplemented or modified.
Appears in 2 contracts
Sources: Debt Restructuring Agreement (Hungarian Telecom LP), Debt Restructuring Agreement (Invitel Holdings a/S)
Financing. (a) Purchaser Each of the Buyer Parties 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, proper or advisable to arrange arrange, obtain and obtain consummate the Financing as promptly as reasonably practicable at or prior to the Closing on the terms and subject only conditions described in the Commitment Letters, including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letters, (ii) negotiate, enter into and deliver the definitive agreements with respect to the Debt Financing to be entered into at or prior to the Closing (the “Definitive Financing Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letters (taking into account any “flex” provisions included in the Fee Letter), (iii) satisfy at or prior to Closing all conditions and covenants to the funding of the Financing Commitmentsin the Commitment Letters and the Definitive Financing Agreements applicable to the Buyer Parties and their respective Affiliates, (iv) assuming that all conditions set forth in the Commitment Letters have been satisfied, borrow on or prior to the Closing Date an amount necessary to consummate the transactions contemplated hereby on the Closing Date or (v) enforce all of its rights under the Commitment Letters and Definitive Financing Agreements including seeking specific performance of the parties thereunder. Purchaser The Buyer Parties shall not not, without the prior written consent of the Company, permit any amendment amendment, supplement or modification to be made to, or any waiver of any provision or remedy under, restate, substitute or replace, the Commitment Letters if such amendment, supplement, modification, waiver, restatement, substitution or replacement (1) would add new (or expand, amend or modify any existing) conditions to the receipt of the Financing, (2) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing Commitments below the Required Amount, (except for any such amendments, modifications or waivers which, individually or in the aggregate, 3) would not otherwise reasonably be reasonably expected to prevent, impede, impair or delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactionstransactions contemplated hereby or (4) without would adversely impact the prior written ability of any of the Buyer Parties to enforce their rights against the other parties to the Commitment Letters or the Definitive Financing Agreements; provided, that the Buyer Parties may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letters as of the date of this Agreement. As promptly as practicable following execution thereof, the Buyer Parties shall furnish to the Company a correct and executed copy of any amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the SellersDebt Commitment Letter and the Fee Letters and any other fee letters entered into in connection with the Debt Financing. Upon any such permitted amendment, which consent shall not be unreasonably withheldsupplement, conditioned modification, waiver or delayed. Without limiting the generality replacement of the foregoingDebt Commitment Letters in accordance with this Section 6.4(b), Purchaser the terms “Debt Commitment Letters,” “Fee Letters” and “Debt Financing” shall refer to the Debt Commitment Letters as so amended, supplemented, modified, waived or replaced and the financing contemplated thereby.
(b) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, the Buyer Parties will (i) use their respective reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative debt financing (as applicable, in an amount sufficient to consummate the transactions contemplated hereby) from the same or other sources and on terms and conditions (taking into account any “flex” provisions included in the Fee Letter) in an amount sufficient for satisfaction of all of the Buyer Parties’ payment obligations under this Agreement due on or prior to the Closing or are not materially less favorable to the Buyer Parties (as determined by Parent in its sole discretion) than such unavailable Debt Financing (the “Alternative Financing”), with it being understood and agreed that if the Buyer Parties proceed with any Alternative Financing, the Buyer Parties shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing, and (ii) promptly notify the Company of such unavailability. For the purposes of this Agreement, (i) maintain in effect the term “Debt Financing” shall be deemed to include the Debt Financing Commitmentsand any such Alternative Financing, (ii) satisfy on a timely basis the term “Debt Commitment Letters” and the “Fee Letter” shall include the Debt Commitment Letter and any Fee Letter, as applicable, shall be deemed to include any commitment letter (or obtain similar agreement) and any fee letter, respectively, with respect to any Alternative Financing arranged in compliance herewith (and any Debt Commitment Letters or Fee Letters remaining in effect at the waiver oftime in question) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into “Definitive Financing Agreements” shall include the definitive agreements with respect documentation relating to the Financing on the terms and subject only to the conditions debt financing contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, Debt Commitment Letter and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the any such Alternative Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the Company’s request, the Buyer Parties shall keep the Company informed, in reasonable request of the Sellersdetail, Purchaser shall inform the Sellers of the status of its their efforts to arrange the Financing and any material developments relating to the Debt Financing. Without limiting the generality of the foregoing, Purchaser the Buyer Parties shall give provide the Sellers Company with prompt notice: written notice of (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse passage of time or both, could reasonably be expected to would give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Commitment Letter or the Definitive Financing Agreements of which the Buyer Parties become aware that would adversely affect the ability or likelihood of the Buyer Parties to timely consummate the transactions contemplated hereby at the Closing, (B) the termination of the Debt Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and Letter, (C) if for any reason Purchaser believes in good faith the occurrence of an event or development that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to would adversely impact the Financing or (y) it is reasonably likely that it will not be able ability of the Buyer Parties to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related (D) any condition precedent to the FinancingDebt Financing that any of the Buyer Parties has any reason to believe will not be satisfied at or prior to the Closing Date. As soon as reasonably practicableNotwithstanding anything to the contrary herein, but in no Buyer Party shall have an obligation to disclose any event within five information pursuant to this Agreement that is subject to attorney-client or similar legal privilege.
(5c) Business Days after From the date of this Agreement until the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) earlier of the immediately preceding sentence. Purchaser shall refrain from takingClosing Date and the valid termination of this Agreement in accordance with Article VIII, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser Company shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are(or, in the aggregatecase of clause (iv) below, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provideshall), and shall use their commercially reasonable efforts to cause their Affiliates its Subsidiaries to, and their respective officers, directors, employees the Company shall cause its and agents to provideits Subsidiaries’ Representatives to, at PurchaserParent’s sole cost and expense, all provide such reasonable cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Debt Financing (it being understood that, solely for purposes of this Section 6.5(c), the terms “Debt Financing” and “Financing” shall be deemed to include any high yield or other financing incurred in lieu of or in addition to any facility contemplated by the Debt Commitment Letter), including by:
(i) participating (and causing senior management and Representatives, with appropriate seniority and expertise, of the Company Group to participate) in a reasonable number of meetings and presentations with actual or prospective lenders, road shows and due diligence sessions, drafting sessions and sessions with rating agencies, and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing (which, at the Company’s option, may be attended via teleconference or virtual meeting platforms) upon reasonable advance notice, during normal business hours and at reasonable times and locations to be mutually agreed;
(ii) providing reasonable assistance to Parent and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents, in each case, solely with respect to information relating to the Company Group, and as required in connection with the Debt Financing and customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Company Group to the extent required by the Debt Commitment Letter or Securities and Exchange Commission rules and regulations or necessary or reasonably requested by Parent to be included in any marketing materials or offering documents or of the type required by the Debt Commitment Letter, it being understood that the Buyer Parties shall be responsible for (i) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iii) any financial information related to Parent or any of its Subsidiaries or any adjustments whether or not directly related to the acquisition of the Company Group;
(iii) to the extent required by the Definitive Financing Agreements, reasonably assisting in connection with facilitating the pledging of collateral, effective no earlier than, and conditioned upon the occurrence of, the Closing;
(iv) furnishing the Buyer Parties and the Debt Financing Sources, as promptly as practicable, with the Required Information that is Compliant;
(v) cooperating with the Buyer Parties to obtain customary and reasonable corporate and facilities ratings, and, solely to the extent required by the Definitive Financing Agreements, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, non-imputation affidavits, surveys and title insurance as reasonably requested by the Debt Financing Sources;
(vi) providing customary documents reasonably requested by Parent relating to the repayment of the Repaid Indebtedness and the release of related guarantees and Liens, including (A) delivering notices of prepayment (or obtaining waivers thereof in the applicable Payoff Letters) within the time periods required by the relevant agreements governing Indebtedness and obtaining the Payoff Letters, Lien terminations and instruments of discharge to be delivered at the Closing, (B) giving any other necessary notices to allow for the payoff, discharge and termination in full at the Closing of all Repaid Indebtedness and (C) any other cooperation reasonably requested by Parent in connection with the repayment or other retirement of any Repaid Indebtedness and the release and termination of any and all related Liens on or prior to the Closing Date;
(vii) to the extent required by the Debt Commitment Letter, providing customary authorization letters with respect to the bank information memoranda (provided that all such authorization letters and materials related thereto (A) shall include or otherwise expressly incorporate language that exculpates the Company Group, its Affiliates and its and their Representatives from any liability in connection with the unauthorized use or misuse by the recipients thereof of all such memoranda and other materials and documents and information set forth therein; and (B) shall have been previously identified to, and provided to the Company and the Company and its Representatives shall have been given reasonable opportunity to review and comment thereon);
(viii) reasonably assisting the Buyer Parties with the preparation, and, subject to the occurrence of Closing, the execution and delivery of any Definitive Financing Agreements by furnishing information relating to the Company Group and their respective businesses to be included in the schedules thereto and customary officer’s certificates (including a customary solvency certificate from the chief financial officer of the Company in the form attached to the Debt Commitment Letter, but solely to the extent such officer remains in such capacity with the Surviving Corporation immediately after the Closing) on terms satisfactory to Parent as may be reasonably required by Parent (provided that no obligation of the Company under any such document or agreement shall be effective until the Closing);
(ix) ensuring that the Debt Financing benefits from existing material lending relationships of the Company Group to the extent practicable and reasonably requested by Purchaser Parent;
(x) taking all reasonable and customary corporate, limited liability company or similar actions necessary to permit the consummation of the Debt Financing (provided that is customary no obligation of the Company to take such action shall be effective until the Closing);
(xi) promptly (but in connection with Purchaser’s efforts no event later than four (4) Business Days prior to obtain the Financing, including to (iClosing Date) provide readily-available financial all documentation and other information relating to the Sellers Company and its Subsidiaries required by bank regulatory authorities under applicable “know-your-customer”, anti-money laundering rules and regulations, including the PATRIOT Act, reasonably requested by Parent in writing, at least ten (10) days prior to the Lenders Closing Date; and
(including information xii) (A) executing and delivering customary management representation letters to be used in the preparation of an informational package regarding the business, operations, financial projections their independent auditors and prospects of Purchaser (B) causing their independent auditors and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, any other auditor to the extent that financial statements audited or reviewed by such auditors are or would be included in any offering memorandum relating to any such Debt Financing to (x) provide drafts and executed versions of customary auditor comfort letters (including “negative assurance” comfort and change period comfort) with respect to historical financial information relating to the Company Group as reasonably requested by Purchaser Buyer Parties or as necessary or customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A) and (y) attend a reasonable number of accounting due diligence sessions and drafting sessions at reasonable times and places.
(d) All non-public or otherwise confidential information regarding the Company, its Subsidiaries and their Affiliates obtained by the Buyer Parties or their Representatives pursuant to this Section 6.5 shall be kept confidential in accordance with the Confidentiality Agreements, including any joinder or other agreement entered into in connection therewith; provided, that notwithstanding the Confidentiality Agreements or any other provision of this Agreement, the Buyer Parties and their respective Affiliates and Representatives shall be permitted to disclose any information provided by, or on behalf of, the Company or its Subsidiaries to any actual or potential debt financing sources, subject to customary confidentiality undertakings by such actual and potential debt financing sources. The Company hereby consents to the use of the logos of the Company and its Subsidiaries in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or its Subsidiaries or their reputation or goodwill.
(e) Notwithstanding anything herein to the contrary, (i) none of the Company, its Subsidiaries or their Affiliates or any persons who are directors or managers of the Company, any of its Subsidiaries or any of their Affiliates shall be required to pass resolutions or consents to approve or authorize the execution of the Debt Financing or to execute, deliver or enter into, or perform any agreement, certificate, arrangement, document or instrument, including any Definitive Financing Agreements, with respect to the Debt Financing that will be effective prior real estate title commitments, surveys, environmental reports to the Closing (other than any customary authorization letters and similar informationmanagement representation letters), (ii) assist in no obligation of the preparation Company, its Subsidiaries or their Affiliates or any of bank information memoranda their respective Representatives undertaken pursuant to the foregoing shall be effective until Closing, and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Merger Agreement (R1 RCM Inc. /DE), Merger Agreement (R1 RCM Inc. /DE)
Financing. (a) Purchaser Parent shall use its reasonable best efforts (taking into account the expected timing of the Marketing Period) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange consummate and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment Letter and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, to the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) Commitment Letter without the prior written consent of the SellersCompany, which consent shall not be unreasonably withheld, conditioned if such amendment or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to modification (i) maintain in effect reduces the aggregate amount of the Financing Commitmentsto an amount below the amount required, to consummate the Mergers and to repay or refinance the debt contemplated to be replaced by the Commitment Letter, including the payment of all fees, premiums and expenses associated therewith, including the redemption of the Notes and satisfaction and discharge of the Indenture pursuant to Section 5.12, (ii) satisfy on a timely basis (imposes additional conditions or obtain any contingencies or otherwise expands upon any of the waiver of) all conditions applicable to Purchaser in the receipt of the Financing Commitments in a manner that are within its control and otherwise comply with its covenants and other obligations thereunderwould reasonably be expected to make any portion of the funding of the Financing less likely to be obtained, (iii) negotiate with prevents, impedes or delays the Lenders occurrence of Closing, (iv) adversely impacts the ability of Parent to enforce its rights against any other party to the Commitment Letter or the Definitive Agreements or (v) adversely impacts the ability of Parent to consummate the transactions contemplated hereby. For the avoidance of doubt, but subject to the foregoing, Parent may amend, supplement, modify or replace the Commitment Letter as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement or (y) to increase the amount of indebtedness. For purposes of this Agreement, (1) the term “Financing” shall be deemed to include the financing contemplated by the Commitment Letter as amended, modified or replaced pursuant to this Section 5.11 (including any Alternative Financing and other third parties any proceeds of any Senior Notes used to satisfy the obligations under this Agreement), and enter into definitive agreements (2) the term “Commitment Letter” shall be deemed to include the Commitment Letter as may be amended or modified pursuant to this Section 5.11 and any commitment letters with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Alternative Financing. Without limiting Parent acknowledges and agrees that neither the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement obtaining of the Financing or (2) any information utilized in connection therewith (Alternative Financing is a condition to Parent’s obligations to consummate the Mergers and the other than information relation to Sellers approved transactions contemplated by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)
Financing. (a) Purchaser The Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, (i) Equity Financing Commitment (the “Equity Financing”), or (ii) the Debt Financing Commitments if, in the case of the Debt Financing Commitments, such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the financing contemplated by the Debt Financing Commitments (the “Debt Financing” and together with the Equity Financing, the “Financing”) to an amount committed below the amount that is required, together with other financial resources of the Buyer, including amounts available under the Equity Financing Commitment, cash, cash equivalents and marketable securities of the Buyer on the Closing Date, to finance the Purchase Price on the terms set forth herein or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) materially delay or prevent the Closing or (B) materially delay, prevent or otherwise make materially less likely to occur the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) and shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Financing Commitments (except for any such amendmentsprovided, modifications however, that the Buyer may amend or waivers whichreplace the Debt Financing Commitments to add lenders, individually lead arrangers, bookrunners, syndication agents or in the aggregate, would similar entities who had not be reasonably expected to prevent, delay or impair the availability executed a Debt Financing Commitment as of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellersdate hereof), which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using commercially reasonable best efforts to (i) maintain in effect the Debt Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Buyer to obtaining the Debt Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunderat the Closing set forth therein, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing thereto on the terms and subject only to conditions (including the conditions flex provisions) contemplated by the Debt Financing Commitments, Commitments (and provide copies thereof to the Seller upon reasonable request) and (iv) consummate the Debt Financing (or a portion thereof) in accordance with the terms and conditions of the Debt Financing Commitments at or prior to the Applicable Closing, .
(vb) enforce its rights under the Financing Commitments in In the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing CommitmentsCommitments (including the flex provisions), Purchaser the Buyer shall promptly notify the Seller and shall use its commercially reasonable best efforts to arrange and to obtain alternative debt financing as promptly as practicable from alternative debt sources on terms and conditions no less favorable to the Buyer (in the reasonable judgment of the Buyer) and in an amount sufficient to replace consummate the Financing as transactions contemplated hereby promptly as practicable and without following the imposition occurrence of any new or additional conditions and without any adverse amendment to existing conditions such event (the “Alternative Financing”). The Buyer shall promptly deliver to the Seller true, complete and correct copies of all agreements pursuant to which any such alternative source shall have committed to provide the Buyer with the Alternative Financing. For purposes of this Section 5.21, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted by this Section 5.21 to be amended, modified or replaced and references to “Debt Financing Commitments” shall include such documents as permitted by this Section 5.21 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.21 or elsewhere in this Agreement shall require, and Purchaser’s obligations in no event shall the “commercially reasonable efforts” of the Buyer be deemed or construed to require, the Buyer to (i) bring any litigation or any other enforcement action against the Debt Financing Sources in order to enforce its rights under this Section 7.05(athe Debt Financing Commitments or otherwise, (ii) shall apply to such alternative financing and seek the agreements related thereto as if such alternative financing is Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Financing and any commitment related thereto is the Commitment, (iii) seek or accept Debt Financing Commitments; provided, that Purchaser shall not be required to agree to on terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth the terms and conditions described in the Debt Financing CommitmentsCommitments (including the flex provisions) as determined in the reasonable judgment of the Buyer or (iv) pay any fees materially in excess of those contemplated by the Debt Financing Commitments (whether to secure a waiver of any conditions contained therein or otherwise).
(bd) Prior In order to assist with the Applicable ClosingDebt Financing and at the Buyer’s expense, the Sellers Seller shall use their commercially reasonable efforts to providepromptly provide its, and shall use their commercially reasonable best efforts to cause their its Representatives to promptly provide their, reasonable best efforts assistance and cooperation as the Buyer and its Affiliates may reasonably request, including, but not limited to, (i) participating in presentations and their respective officersmeetings (including customary one-on-one meetings between senior management and representatives of the Seller and the Debt Financing Sources, directorsprospective lenders in respect of the Debt Financing and rating agencies) and cooperating with the marketing efforts of the Buyer and the Debt Financing Sources, employees (ii) assisting with the preparation of materials for rating agency presentations, bank information memoranda, business projections, lender presentations and agents similar documents prepared in connection with the Debt Financing, including execution and delivery of customary representation letters in connection with bank information memoranda, (iii) furnishing the Buyer and the Debt Financing Sources with financial, due diligence material and other pertinent information regarding the Seller as may be reasonably requested by the Buyer, (iv) executing and delivering, as of the Closing Date, any definitive financing documents, including any credit agreements, guarantees, pledge agreements, security agreements, mortgages, deeds of trust and other security documents or other certificates, documents and instruments relating to provideguarantees, at Purchaser’s sole cost the pledge of the collateral securing the Debt Financing and expenseother matters ancillary to the Debt Financing as may be reasonably requested by the Buyer in connection with the Debt Financing and otherwise reasonably facilitating the pledging of, and granting and perfecting of Encumbrances in, the collateral securing the Debt Financing (including cooperation in connection with the payoff of the Indebtedness of the Seller required by this Agreement and the termination of related Encumbrances), (v) furnishing, within the time period specified in the Debt Financing Commitments, all reasonable cooperation documentation and other information required by regulators and authorities under applicable “know your customer” and anti-money laundering and regulations, including the PATRIOT Act and (vi) taking all corporate or other actions, and providing such other assistance, necessary or reasonably requested by the Buyer to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Buyer on the Closing Date. The Seller hereby consents to the use of its logos in connection with the Debt Financing. For purposes of this Section 5.21(d), references to “Debt Financing” shall include any Alternative Financing.
(e) The Buyer shall (i) if the Closing does not occur, indemnify and hold harmless the Seller from and against any and all liabilities and expenses suffered or incurred by the Seller in connection with the arrangement of the Debt Financing as may be reasonably requested contemplated by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser Debt Financing Commitments and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion performance of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to its obligations under this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers 5.21 and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation related to Sellers approved the Seller or its Subsidiaries provided by Sellers or on behalf of the Seller or its Subsidiaries in writing specifically for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentially protectionsoffering documents) and (ii) promptly upon request of the Seller reimburse the Seller for all reasonable costs and expenses incurred by the Seller (including those of its Representatives) in connection with the cooperation required by this Section 5.21.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, (i) US Buyer shall use its reasonable best efforts to takeobtain the Financing contemplated by the Commitment Letter, including taking, or cause causing to be taken, all actions and to dodoing, or cause causing to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on contemplated by the terms Commitment Letter, and subject only to the conditions contained in the Financing Commitments. Purchaser (ii) shall not permit any amendment or modification to be made to, to or any waiver of any material provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments Commitment Letter or the consummation of the Transactions) any related fee letters without the prior written consent of the Sellers’ Representative; provided that US Buyer may amend the Commitment Letter to add lenders, which consent shall lead arrangers, bookrunners, syndication agents or similar entities who had not be unreasonably withheld, conditioned or delayed. Without limiting executed the generality Commitment Letter as of the foregoingdate of this Agreement, Purchaser or otherwise replace or amend the Commitment Letter, in each case, so long as such action would not (A) reasonably be expected to delay or prevent the Closing, (B) expand on, or provide for additional, conditions precedent to the initial funding of the Financing or (C) reduce the aggregate amount of the Financing at the Closing below an amount sufficient (when taken together with Buyers’ other available funds) to enable Buyers to pay the Estimated Purchase Price and the fees and expenses of Buyers relating to the transactions contemplated by this Agreement that are required to be paid at the Closing.
(b) US Buyer shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control Commitment Letter and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on substantially the terms and subject only conditions contained in the Commitment Letter (after giving effect to any “market flex” provisions contained in any fee letters, which fee letters shall be disclosed in a customary redacted form to the Sellers’ Representative). Upon the request of the Sellers’ Representative from time to time, US Buyer shall keep the Sellers’ Representative informed on a reasonably current basis and in reasonable detail of the status of US Buyer’s efforts to arrange the Financing. In the event that all conditions contemplated by in the Commitment Letter have been satisfied or, upon funding will be satisfied, US Buyer shall use its reasonable best efforts to cause the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders Sources to fund on the Applicable Closing Date the Financing (or a portion thereof) financing required to consummate the transactions to be consummated at contemplated by this Agreement. In the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, event that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitmentsunavailable, Purchaser US Buyer shall use its reasonable best efforts to arrange and obtain replacement financing on terms not materially less favorable, taken as a whole, to US Buyer than those under the Commitment Letter from alternative sources as promptly as practicable from alternative sources in an amount sufficient to replace consummate the Financing as promptly as practicable transactions contemplated by this Agreement (and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions in such case references in this Agreement to the Financing, and Purchaser’s obligations under this Section 7.05(a) Commitment Letter shall apply be deemed to such alternative financing and refer also to the agreements related thereto as if under which such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; replacement commitments are provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, references in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary this Agreement to the Financing as may shall be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice deemed to refer also to the extent related to the participation in meetingsfinancing contemplated thereby, presentations, drafting sessions or similar activities, syndication and all obligations of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation US Buyer pursuant to this Section 7.05(b) 7.17 shall delay be applicable thereto to the Applicable Closing, or unreasonably interfere same extent as with respect to the ongoing operations of Sellers Commitment Letter and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without For the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination purposes of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided references to Purchaser the “Commitment Letter” shall include such documents as permitted or its Representative pursuant to required by this Section 7.05(b7.17 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement and references to the “Financing” shall include any such modified or alternative debt financing.
(c) US Buyer shall give the Sellers’ Representative prompt notice of any breach, default of, or actual withdrawal, repudiation or termination in writing by, any party to the Commitment Letter or of any condition not likely to be kept confidential by them satisfied, in accordance with each case, of which US Buyer becomes aware or any termination of the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsCommitment Letter.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Harte Hanks Inc)
Financing. (a) Purchaser shall use its reasonable best efforts to takeParent, or cause to be taken, all actions Amalgamation Sub and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser Guarantors shall not permit (without the prior written consent of the Company) consent or agree to any amendment amendment, replacement, supplement or modification to be made to, or any waiver of any provision or remedy under, the Equity Commitment Letter if such amendment, replacement, supplement, modification or waiver (i) decreases the aggregate amount of the Equity Financing Commitments to an amount that would be less than an amount that would be required to consummate the Amalgamation and make the other payments required by Parent, Amalgamation Sub and the Amalgamated Company hereunder or otherwise contemplated in connection herewith, (except for ii) imposes new or additional conditions or otherwise expands, amends or modifies any such amendmentsof the conditions to the receipt of the Equity Financing, modifications or waivers which, individually or in the aggregate, (iii) would not reasonably be reasonably expected to prevent, impede or delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions, or (iv) without materially and adversely impacts the prior written ability of Parent or Amalgamation Sub to enforce its rights against the other parties to the Equity Commitment Letter. Upon request, Parent shall furnish to the Company a copy of any replacement, amendment, modification, waiver or consent of or relating to the SellersEquity Commitment Letter promptly upon execution thereof. Upon any replacement, which consent amendment, supplement or modification of the Equity Commitment Letter made in compliance with this Section 7.07(a) (excluding any amendment for the sole purpose of joining or adding additional commitment parties thereto), Parent shall not be unreasonably withheldprovide a copy thereof to the Company and the term “Equity Commitment Letter” shall mean the Equity Commitment Letter as so amended, conditioned replaced, supplemented or delayedmodified. Without limiting the generality of Notwithstanding the foregoing, Purchaser compliance by Parent with this Section 7.07 shall use reasonable best efforts not relieve Parent or Amalgamation Sub of its obligation to (i) maintain in effect consummate the Transactions whether or not the Equity Financing Commitmentsis available and each of Parent and Amalgamation Sub acknowledges that this Agreement, (ii) satisfy the Amalgamation and the other Transactions are not contingent on a timely basis Parent’s or Amalgamation Sub’s ability to obtain the financing (or obtain the waiver ofany alternative financing) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements or any specific term with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsfinancing.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Amalgamation Agreement, Amalgamation Agreement (Global Sources LTD /Bermuda)
Financing. (a) Subject to the terms and conditions of this Agreement (including Section 5.18(d) hereof), Purchaser shall, and shall cause its Subsidiaries to, 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, proper or and advisable to arrange consummate and obtain the Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained flex provisions) described in the Financing Commitments. Purchaser Letters and any related Fee Letter, including using reasonable best efforts to seek to enforce (including through litigation) its rights under the Financing Letters in the event of a material breach by the counterparties thereto, and, without the consent of Clorox Parent (which shall not be unreasonably withheld or delayed), shall not permit any material amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Financing Commitments Letters or any related Fee Letter, if such amendment, modification or waiver (except for any such amendments, modifications or waivers which, individually or in i) reduces the aggregate, would not be reasonably expected to prevent, delay or impair the availability aggregate amount of the Financing under (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Financing Commitments Letters, or the consummation (ii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the Transactions) without conditions to the prior written consent receipt of the SellersFinancing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing Date, which consent (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur, or (z) adversely impact the ability of Purchaser to enforce its rights against the other parties to the Financing Letters or Fee Letter. For purposes of clarification, the foregoing shall not be unreasonably withheld, conditioned or delayed. Without limiting prohibit Purchaser from amending the generality of the foregoing, Purchaser shall use reasonable best efforts Debt Commitment Letter and any related Fee Letter to (i) maintain in effect the Financing Commitments, add or replace lender(s) (and Affiliates of such additional lender(s)) as a party thereto or (ii) satisfy on make such other changes that would not, taken as a timely basis whole, adversely impact the ability of Purchaser to consummate the transactions contemplated hereby. Any reference in this Agreement to (or obtain A) “Financing” shall include the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions financing contemplated by the Financing Commitments, (iv) consummate the Financing (Letters as amended or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments modified in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, compliance with this Section 5.18 and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice “Financing Letters” or other written communication from any Person “Debt Commitment Letter” shall include such documents as amended or modified in compliance with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financingthis Section 5.18(a). As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) 5.18 shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially include Purchaser’s reasonable best efforts to provideconsummate a senior notes offering using the items listed in Section 5.19(a)(iv)(A)(I), Section 5.19(a)(iv)(A)(II), and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing Section 5.19(a)(iv)(B) (as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including it applies to (iSection 5.19(a)(iv)(A)(I) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar informationSection 5.19(a)(iv)(A)(II), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Armored AutoGroup Inc.), Purchase and Sale Agreement (Clorox Co /De/)
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser Spinco shall use reasonable best efforts to (i) maintain in effect effect, until the earlier of the funding of the initial funding of the Financing Commitments(as defined below) and the funding of the Permanent Financing (as defined below) (in each case, in an amount sufficient to fund the Spinco Cash Distribution), the commitment letter, dated as of the date this Agreement (including: (A) all exhibits, schedules, annexes and amendments to such agreement in effect as of the date hereof; and (B) any associated fee letters (together, as amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement and thereof, the “Spinco Commitment Letter”)), from the financing sources party thereto (together with all additional lenders, agents and financing sources added to the Spinco Commitment Letter, the “Spinco Lenders”), pursuant to which, among other things, the Spinco Lenders have committed to provide Spinco with debt financing in the amount set forth therein (the debt financing contemplated by the Spinco Commitment Letter, together with any amendment, modification, supplement, restatement, substitution or waiver thereof in accordance with the terms of this Agreement being referred to as the “Financing”), (ii) materially comply with the obligations that are set forth in the Spinco Commitment Letter that are applicable to Spinco and satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser precedent in the Financing Commitments Spinco Commitment Letter that are within its control control, and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with fully enforce the Lenders and other third parties and enter into definitive agreements with respect to rights of Spinco under the Spinco Commitment Letter.
(b) In the event any funds in the amounts set forth in the Spinco Commitment Letter or the Financing Agreements, or any portion thereof, become unavailable on the terms and subject only conditions contemplated in the Spinco Commitment Letter or the Financing Agreements, Pluto (in consultation in good faith with Utah) shall cause Spinco to, and Utah shall, and shall cause its Subsidiaries to, use reasonable best efforts to cooperate to arrange to obtain promptly any such portion from the same or alternative sources, in an amount sufficient, when added to the conditions contemplated by portion of the Financing Commitmentsthat is available, to allow Spinco to make the Spinco Cash Distribution (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing“Alternative Financing”), and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or obtain a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing)new financing commitment that provides for such financing; provided, that Purchaser (i) the terms of the Alternative Financing must (A) not result in any adverse Tax consequences to Pluto and its Subsidiaries, including as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) be customary and reasonable in light of then-prevailing market terms and (ii) none of Spinco, any Spinco Entity or any Utah Entity shall not agree, or be required to agree agree, (A) to terms and conditions that areof the Alternative Financing if the consummation thereof on such terms and conditions, taking into account and after giving effect to the Spinco Cash Distribution, the Combination and the other transactions contemplated hereby, would result in Spinco having a Below Investment Grade Rating or (B) to any Alternative Financing if, after giving effect to such Alternative Financing, the aggregate, materially less favorable to Purchaser than those Weighted Average Cost of the Available Debt Financing would be in excess of the percentage set forth in the Financing Commitments. Upon the reasonable request on Section 8.8 of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Utah Disclosure Schedule.
(c) Spinco shall give the Sellers Utah prompt notice: written notice upon it obtaining knowledge of (Ai) upon becoming aware of any material breach (or threatened material breach) or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to the Spinco Commitment Letter, (ii) any Financing Commitment actual or any definitive document related to threatened withdrawal, repudiation or termination of the Financing by any of the Spinco Lenders, (iii) any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any of the parties to the Spinco Commitment Letter, and (iv) any Financing amendment or modification of, or waiver under, the Spinco Commitment Letter. Spinco shall not, without the prior written consent of Utah, amend, modify, supplement, restate, substitute, replace, terminate, or agree to any definitive document related waiver under the Spinco Commitment Letter; provided that notwithstanding the foregoing, Spinco may (i) implement or exercise any of the “market flex” provisions exercised by the Spinco Lenders in accordance with the Spinco Commitment Letter as of the date hereof or (ii) amend and restate the Spinco Commitment Letter or otherwise execute joinder agreements to the Financing; and Spinco Commitment Letter solely to add additional Spinco Lenders.
(Cd) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to Until the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion earlier of the Financing on Closing and the termsvalid termination of this agreement in accordance with Article X, in each of Spinco and Utah agrees to cooperate and use reasonable best efforts to cause the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to arrangement and consummation of the Financing. As soon as reasonably practicable, but in any event within five including, without limitation, by (5i) Business Days after the date the Sellers deliver to Purchaser a written requestnegotiating definitive agreements with respect thereto, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated contained in the Financing Commitments, Purchaser shall use its reasonable best efforts Spinco Commitment Letter or on such other terms as are reasonably acceptable to arrange Pluto and obtain financing that are not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as promptly as practicable from alternative sources in an amount sufficient to replace effect on the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitmentsdate hereof; provided, that Purchaser (A) Pluto’s consent, in its sole discretion, shall not be required to agree to in respect of any such other terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent such terms would reasonably requested be expected to result in any adverse Tax consequences to Pluto and its Subsidiaries as to the Tax-Free Status of the transactions contemplated by Purchaser the Transaction Documents (including prior real estate title commitmentsas determined by Pluto in good faith) and (B) Pluto’s consent, surveysnot to be unreasonably withheld, environmental reports conditioned or delayed, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any other adverse Tax consequences to Pluto and similar informationits Subsidiaries (the “Financing Agreements”), (ii) assist satisfying on a timely basis all conditions precedent in the preparation Spinco Commitment Letter and the Financing Agreements that are within the control of bank information memoranda Utah or any of its Subsidiaries, and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause arranging as promptly as reasonably practicable the Sellers Financing prior to the Closing on the terms and conditions set forth in the Spinco Commitment Letter or on such other terms as are reasonably acceptable to Pluto and that are not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, that (A) Pluto’s consent, in its sole discretion, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any adverse Tax consequences to Pluto and its Subsidiaries as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) Pluto’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any other adverse Tax consequences to Pluto and its Subsidiaries. Pluto hereby consents to the use of Spinco’s and its Subsidiaries’ logos in connection with the Financing and solely in a manner that is not intended or reasonably likely to harm or disparage the reputation or goodwill of the relevant party, or any of their Affiliates to execute respective intellectual property rights. Spinco and deliver (and use commercially Utah shall, upon request by Pluto, each keep Pluto informed in reasonable detail of the status of its efforts to obtain from arrange the Sellers’ Financing and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate as promptly as practicable provide copies of then-current drafts of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in Financing Agreements and any materials definitive agreements relating to the Permanent Financing.
(e) or other documents and instruments relating to guarantees and other matters ancillary Notwithstanding anything herein to the contrary, if the Financing as may be is available on terms contemplated by the Spinco Commitment Letter or otherwise on terms that are reasonably requested by Purchaser, (iv) assist satisfactory to Pluto and not materially less favorable in the preparation ofaggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, entering into andthat (A) Pluto’s consent, upon reasonable prior notice in its sole discretion, shall be required in respect of any such other terms to the extent related such terms would reasonably be expected to result in any adverse tax consequences to Pluto and its Subsidiaries as to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants tax-free status of the Sellers provide their reasonable cooperation transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and assistance(B) Pluto’s consent, (vi) cooperate reasonably with the Lenders’ due diligencenot to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to the extent customary such terms would reasonably be expected to result in any other adverse tax consequences to Pluto and reasonableits Subsidiaries, and all conditions to the Closing set forth in Article IX have been satisfied or waived (vii) refrain from pursuing any financing transactions other than those conditions that may delayby their nature are to be satisfied at the Closing), impede or otherwise adversely affect Pluto shall cause Spinco to, and Spinco shall, immediately prior to the date of the Distribution incur the indebtedness provided for under the Spinco Commitment Letter and the Financing Agreements and (viii) assist Purchaser use the proceeds thereof to make a payment to Pluto in an aggregate amount equal to the Spinco Cash Distribution, on and pursuant to the Lenders to benefit from the existing lending relationships terms of the Sellers Separation and their Affiliates; providedDistribution Agreement. Spinco shall not incur the indebtedness contemplated by the Financing prior to the date that is one Business Day prior to the date of the Distribution without Utah’s prior written consent (not to be unreasonably withheld, howeverconditioned or delayed).
(f) Notwithstanding the foregoing, that no requested cooperation in the event of termination of this Agreement pursuant to this Section 7.05(b) Article X, Utah shall, and shall delay the Applicable Closingcause its Subsidiaries to, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) pay Pluto an amount of cash equal to 43% of the Financing Obligations (such payment to be required to pay made promptly and in any commitment or other similar fee, event within ten (10) Business Days of delivery by Pluto of a written request therefor accompanied by reasonable supporting documentation evidencing such Financing Obligations) and (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers Pluto, its Subsidiaries and its and their respective subsidiaries and Representatives from and against 43% of any Losses (other than fees and all Losses expenses of counsel, accountants, consultants or other advisors) actually suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) the Permanent Financing, and any information utilized in connection therewith (other than information relation provided by or on behalf of Pluto or any of its Subsidiaries in writing prior to Sellers approved by Sellers for use therein). This indemnification shall survive termination the Closing Date) except to the extent suffered or incurred as a result of the gross negligence, willful misconduct or material breach of this Agreement, the Spinco Commitment Letter or any Financing Agreement by Pluto or any of its Subsidiaries.
(g) Each of Pluto, Spinco and Utah agrees to cooperate and use reasonable best efforts to take, or cause to be taken, and to cause their respective Representatives to take or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable and proper in connection with the arrangement, marketing and consummation of the issuance of any debt securities or the incurrence of any other long-term debt financing by Spinco in lieu of the Financing (such financing, the “Permanent Financing”), on or prior to the Closing Date, including (i) consulting in good faith on the terms and conditions of any Permanent Financing, (ii) participating in the marketing and syndication efforts related thereto and (iii) participating in the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and investors, in each case, with respect thereto, in each case, provided that the terms of such Permanent Financing are reasonably satisfactory to Pluto and Utah. All materialNotwithstanding the foregoing, non-public information regarding Sellers Pluto and their Affiliates provided Utah shall not be required to Purchaser or its Representative pursuant to take any action under this Section 7.05(b8.8(g) that would unreasonably interfere with their respective businesses or ongoing operations.
(h) Notwithstanding anything to the contrary in this Section 8.8, (i) no action contemplated in this Section 8.8 shall be kept confidential by them required if any such action shall: (A) require Pluto or any of its Subsidiaries (other than Spinco and its Subsidiaries) to be an issuer of the Financing or the Permanent Financing, (B) require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, or any of their respective Representatives, to provide (or to have provided on its behalf) any certificates, legal opinions or negative assurance letters (other than, in accordance with the Confidentiality Agreementcase of Spinco and its Subsidiaries, except for disclosure certificates, opinions or letters delivered at the closing of the Financing); (C) cause any director, officer or employee of Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to potential investors as required incur any personal liability; (D) require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to execute and deliver any pledge or security documents or certificates, documents or instruments relating to the provision of collateral in connection with the Financing subject or Permanent Financing other than those related to Spinco and its Subsidiaries that shall not become effective until after the Distribution; (E) without limiting clauses (B) and (D) above, require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to execute and deliver any documentation related to the Financing or Permanent Financing other than (i) documentation executed and delivered by Spinco and its Subsidiaries and (ii) customary comfort letters executed and delivered by Utah’s accountants (and customary representation letters related thereto executed and delivered by Utah and its Subsidiaries); (F)
(1) jeopardize (in Pluto’s reasonable determination) any attorney-client privilege of Pluto or any of its Subsidiaries (in which case Pluto and such Subsidiaries shall use reasonable best efforts to take such action in a manner that would not jeopardize such attorney-client privilege) or (2) jeopardize (in Utah’s reasonable determination) any attorney-client privilege of Utah or any of its Subsidiaries (in which case Utah and such Subsidiaries shall use reasonable best efforts to take such action in a manner that would not jeopardize such attorney-client privilege); or (G) result in a material violation or breach of, or a default under, the Organizational Documents of Pluto or its Subsidiaries, or the Organizational Documents of Utah or its Subsidiaries, or any applicable Law.
(i) All non-public or otherwise confidential information regarding the Spinco Business obtained by Utah or its Representatives pursuant to this Section 8.8 or otherwise shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Notwithstanding any other provision set forth herein or in any other agreement between Pluto and Utah (or their respective Affiliates), Pluto agrees that Utah may share information with respect to Spinco and the Spinco Business with the Spinco Lenders, and that Utah and such Spinco Lenders may share such information with potential financing sources in connection with any marketing efforts for the Financing; provided, however, that the recipients of such information and any other information contemplated to be provided by Utah or any of its Subsidiaries pursuant to this Section 8.8, agree to customary confidentiality arrangements, including “click through” confidentiality agreements and confidentially protectionsprovisions contained in customary bank books and offering memoranda.
(j) All non-public or otherwise confidential information regarding the businesses of Utah and its Subsidiaries obtained by Pluto, Spinco or their respective Representatives pursuant to this Section 8.8 or otherwise shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Notwithstanding any other provision set forth herein or in any other agreement between Pluto or Spinco, on the one hand, and Utah, on the other hand (or their respective Affiliates), Utah agrees that Pluto and Spinco may share information with respect to the businesses of Utah and its Subsidiaries with the Spinco Lenders, and that Pluto, Spinco and such Spinco Lenders may share such information with potential financing sources in connection with any marketing efforts for the Financing; provided, however, that the recipients of such information and any other information contemplated to
Appears in 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Financing. (a) Purchaser Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain consummate the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing CommitmentsCommitment (or on other terms that would not adversely impact the ability of Parent to timely consummate the transactions contemplated by this Agreement). Purchaser Subject to Section 8.01(g) of this Agreement, in the event that any portion of the Financing becomes unavailable in the manner or from the sources contemplated in the Financing Commitment, (i) Parent shall promptly notify the Company, and (ii) Parent shall use its commercially reasonable efforts to arrange to obtain any such portion from alternative sources, on terms that are no less favorable to Parent, as promptly as practicable following the occurrence of such event, including entering into definitive agreements with respect thereto (such definitive agreements entered into pursuant to the first or second sentence of this Section 6.07(a) being referred to as the “Financing Agreements”). In connection with its obligations under this Section 6.07, Parent shall be permitted to amend, modify or replace the Financing Commitment with one or more new Financing Commitments (a “New Financing Commitment”), provided that Parent shall not permit any replacement of, or amendment or modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not Commitment can reasonably be reasonably expected to prevent, delay or impair the availability of Closing beyond the Financing under Outside Date. Parent shall keep the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers Company reasonably informed of the status of its Parent’s efforts to arrange the Financing and any material developments relating Financing. Notwithstanding anything to the Financing. Without limiting the generality contrary in this Section 6.07(a) or otherwise in this Agreement, neither Parent or Merger Sub nor any of the foregoing, Purchaser their respective Affiliates shall give the Sellers prompt notice: (A) upon becoming aware of be obligated or required to commence or pursue any material breach legal action or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected proceeding seeking to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from compel any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or fund any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in consummate the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsMerger.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provideThe Company shall, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officerseach of its Subsidiaries to, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation reasonably cooperate in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and Parent (provided that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or does not unreasonably interfere with the ongoing operations of Sellers the Company and its Subsidiaries). Such cooperation by the Sellers Company and its Subsidiaries shall not include, at the reasonable request of Parent, (Ai) using its commercially reasonable efforts to cause to be required to pay any commitment delivered such officer’s or other similar feecertificates as are customary in financings of such type (including a certificate of the chief financial officer of the Company with respect to solvency matters) and as are, in the good faith determination of the persons executing such certificates, accurate, (Bii) have agreeing to enter into such agreements as are customary in financings of such type, including definitive financing documents, lock-box, blocked account and similar agreements, and agreeing to pledge, guarantee, grant security interests in, and otherwise grant liens on, the Company’s or its Subsidiaries’ assets pursuant to such agreements, as may be reasonably requested (and executing and delivering any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement documents or other agreement or document related to the Financinginstruments, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shallagreeing to enter into agreements, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement foregoing); provided, that no obligation of the Company or its Subsidiaries under any such agreement, pledge, guarantee or grant contemplated by this clause (ii) shall be effective until the Effective Time, (iii) using its commercially reasonable efforts to cause its independent registered public accountants to deliver such comfort letters as are customary in financings of such type, (iv) providing Parent and its Financing sources as promptly as practicable with financial and other pertinent information (including monthly financial statements of the Company and its Subsidiaries with respect to the Company and its Subsidiaries, (v) cooperating with any field examination required by the Financing source, (vi) making the Company’s executive officers and other relevant employees reasonably available to assist the lenders providing the Financing, and (vii) taking all corporate actions, subject to the occurrence of the Closing, to permit consummation of the Financing and the direct borrowing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination incurrence of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with all proceeds of the Financing subject to customary confidentially protectionsby the Surviving Corporation immediately following the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Hirsch International Corp), Merger Agreement (Hirsch International Corp)
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only Notwithstanding anything to the conditions contrary contained in this Agreement, it is expressly understood and agreed by the Parties that (x) the Debt Financing Commitments. Purchaser Commitment by its terms contemplates reductions of the commitments thereunder or the termination thereof pursuant to the provisions entitled “Mandatory Commitment Reductions and Prepayments” in Annex B to the Debt Financing Commitment and (y) that Acquiror shall not permit have the right to terminate or reduce any amendment or modification and all commitments under the Debt Financing Commitment pursuant to be made tothe provisions entitled “Optional Commitment Reductions and Prepayments” in Annex B to the Debt Financing Commitment, or any waiver so long as, in the case of any provision termination or remedy underreduction pursuant to such provisions, the (i) Acquiror provides Verizon with reasonable advance written notice of its intent to terminate or reduce such commitments, (ii) after giving effect to such termination or reduction Acquiror shall maintain available cash, committed financing (including under any portion of Debt Financing Commitments (except for any such amendments, modifications or waivers which, individually or Commitment) and available capacity under its existing revolving credit facilities sufficient in the aggregateaggregate to enable Acquiror and the Tower Operator to consummate the transactions contemplated hereby, would not be reasonably expected to prevent, delay or impair the availability including payment of the Consideration and fees and expenses of Acquiror relating to the transactions contemplated hereby and (iii) prior to such termination or reduction, Acquiror supplies written documentation reasonably satisfactory to the Verizon Parties evidencing such available cash, committed financing and available capacity.
(b) Acquiror and the Tower Operator acknowledge and agree that the receipt of the Debt Financing under the Financing Commitments or is not a condition to the consummation of the TransactionsInitial Closing or the other transactions contemplated by this Agreement and the Collateral Agreements, and that, except as otherwise expressly provided herein, the failure to obtain the Debt Financing shall not in any way relieve Acquiror and the Tower Operator of their obligations to consummate the Initial Closing or the other transactions contemplated by this Agreement and the Collateral Agreements.
(c) without Subject to any termination or reduction in accordance with Section 9.11(a) and to the prior written consent extent some or all of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality proceeds of the foregoing“Bank Financing”, Purchaser “Equity Offering” or the “Notes Offering” described in Annex B to the Debt Financing Commitment are not available, Acquiror shall use commercially reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights borrow under the Financing Commitments “Facility” described in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) such Annex B as required to consummate the transactions to be consummated at the Applicable Closing (contemplated hereby, including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request payment of the Sellers, Purchaser shall inform the Sellers Consideration and fees and expenses of the status of its efforts to arrange the Financing and any material developments Acquiror relating to the Financing. Without limiting the generality of the foregoingtransactions contemplated hereby, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach on or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or prior to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable Initial Closing Date on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Debt Financing Commitments.
Commitment including (bi) Prior to the Applicable Closing, the Sellers shall use their maintaining in effect and using commercially reasonable efforts to provideenforce the Debt Financing Commitment, and shall use their including, subject to satisfaction of the conditions thereunder, using commercially reasonable efforts in good faith, to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement seek specific performance of the Financing as may be reasonably requested by Purchaser funding obligations of the parties thereunder, and that is customary in connection complying with Purchaser’s efforts to obtain the Financingits obligations thereunder, including to (iii) provide readily-available financial and other information relating satisfying on a timely basis all conditions to the Sellers to the Lenders (including information to be used Debt Financing set forth in the preparation of an informational package regarding Debt Financing Commitment that are within Acquiror’s control and (iii) drawing the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion full amount of the Debt Financing by then available, in the Lendersevent that the conditions set forth in Section 10.1 and Section 10.2 have been satisfied (or otherwise waived with, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional uponrequired, the Applicable Closing customary certificates (including a certificate consent of the principal financial officer of each of the Sellers with respect to solvency mattersDebt Financing Sources), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Master Agreement, Master Agreement (American Tower Corp /Ma/)
Financing. (a) Purchaser Acquiror and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, as promptly as practicable after the date hereof, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable (including enforcing its rights under the Subscription Agreements), on or prior to arrange and obtain the Financing as promptly as reasonably practicable Closing Date, to consummate the purchases contemplated by the Subscription Agreements on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment described or modification to be made tocontemplated therein, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using its reasonable best efforts to (i) comply with its respective obligations under the Subscription Agreements, (w) maintain in effect the Financing CommitmentsSubscription Agreements in accordance with the terms and conditions thereof, (iix) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Purchaser Acquiror set forth in the Financing Commitments that are applicable Subscription Agreements within its control and otherwise comply with its covenants and other obligations thereundercontrol, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (ivy) consummate the Financing PIPE Investment when required pursuant to this Agreement, and (or a portion thereof) at or prior to the Applicable Closing, (vz) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action Subscription Agreements to cause the Lenders Subscribers to provide pay to (or as directed by) Acquiror the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, applicable purchase price under each Subscriber’s applicable Subscription Agreement in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitmentsaccordance with its terms. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Acquiror shall give the Sellers Company prompt notice: written notice upon (A) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment of the Subscription Agreements or definitive document related to any termination (or purported termination) of any of the Financing; Subscription Agreements, (B) of the receipt of any written notice or other written communication from any Person party to any Subscription Agreement with respect to any (x) actual actual, potential or potential claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Financing Commitment Subscription Agreement or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; Subscription Agreement and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood Acquiror does not expect to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain receive all or any portion of the Financing PIPE Investment Amount on the terms, in the manner or from the sources contemplated by the Financing Commitments or Subscription Agreements. Acquiror shall not, without the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a prior written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) consent of the immediately preceding sentence. Purchaser shall refrain from takingCompany, directly amend, modify, supplement or indirectlywaive (or permit any waiver of) any provision of, or terminate or abandon its plans with respect to, or provide consent to amend, modify, supplement, waive, assign or terminate any provision or remedy under, or any replacements of, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments Subscription Agreement.
(b) If all or any definitive agreement related thereto. If any portion of the Financing PIPE Investment becomes unavailable on unavailable, (i) Acquiror shall promptly notify the terms Company, (ii) Acquiror and conditions contemplated the Company shall mutually cooperate in good faith and Acquiror and the Company shall promptly use its reasonable best efforts to promptly obtain the PIPE Investment or such portion of the PIPE Investment from alternative sources in an amount, when added to any portion of the PIPE Investment that is available, equal to the PIPE Investment Amount (any alternative source(s) of financing, “Alternative PIPE Investment”) and (iii) in the Financing Commitmentsevent that Acquiror is able to obtain any Alternative PIPE Investment, Purchaser subject to the prior written consent of the Company (in its sole discretion), Acquiror shall use its reasonable best efforts to arrange enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the subscription and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable purchase of Acquiror Common Stock at $10.00 per share and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to containing terms and conditions with respect to any alternative financing that are, in the aggregate, materially not less favorable in any material respect to Purchaser the aggregate from the standpoint of Acquiror and the Company than those set forth in the Financing Commitments.
Subscription Agreements entered into as of the date hereof (b) Prior as determined by the Company (in its sole discretion)). In such event, the term “PIPE Investment” as used in this Agreement shall be deemed to include any Alternative PIPE Investment, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the term “PIPE Acquiror” as used in this Agreement shall be deemed to include any Person that is subscribing for Acquiror Common Stock under any Alternative Subscription Agreement. For the avoidance of doubt, if all or any portion of the PIPE Investment or Alternative PIPE Investment becomes unavailable, in each case subject to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement prior written consent of the Financing as Company (in its sole discretion) Acquiror may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain utilize deposits, proceeds or any other amounts from the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the LendersTrust Account and, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating acceptable to the Financing) or other documents and instruments relating Company, any additional third party financing to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing satisfy its financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsobligations hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Spring Valley Acquisition Corp.), Merger Agreement (Spring Valley Acquisition Corp.)
Financing. (a) Purchaser Each of the Parent Parties shall use use, and shall cause its Affiliates to use, its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange arrange, obtain and obtain consummate the Financing as promptly as reasonably practicable on the terms and subject only conditions (including, to the conditions contained extent required, the full exercise of any “flex” provisions) described in the Financing Commitments. Purchaser Commitment Letter, and shall not permit any amendment amendment, supplement or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments Commitment Letter to the extent that such amendment, supplement, modification or waiver (except for any such amendments, modifications A) reduces (or waivers which, individually or in could have the aggregate, would not be reasonably expected to prevent, delay or impair effect of reducing) the availability aggregate amount of the Financing under below an amount necessary for the Financing Commitments Parent to be able to satisfy the Merger Amounts on the Closing Date, or (B) imposes new or additional material conditions or otherwise materially expands upon any of the conditions to the consummation of the TransactionsFinancing on the Closing Date, or (C) expands, amends or modifies any other provision, in a manner materially adverse to the Company or that would reasonably be expected to (x) delay or prevent or make materially less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (y) materially adversely impact the ability of any Parent Party to enforce its rights against other parties to the Commitment Letter or the definitive agreements with respect thereto (provided that, notwithstanding the foregoing subject to compliance with the other provisions of this Section 6.12(a), the Parent Parties may amend or otherwise modify the Commitment Letter to add additional lenders, arrangers, bookrunners and agents). Parent shall promptly deliver to the Company copies of any material amendment, supplement, waiver, consent, modification or replacement in respect of the Commitment Letter, and, at the request of the Company, provide the Company with such information and documentation to allow the Company to reasonably monitor the progress of such financing activities. The Parent Parties shall not agree to the withdrawal, termination, repudiation, reduction or rescission of any commitment in respect of the Financing, and shall not release or consent to the termination of the obligations of the financing sources under the Commitment Letter, in each case, without the prior written consent of the SellersCompany. For purposes of this Section 6.12, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect references to “Financing” shall include the Financing Commitmentsfinancing contemplated by the Commitment Letter as permitted to be amended, modified, supplemented or replaced by this Section 6.12(a) and (ii) satisfy on a timely basis (references to “Commitment Letter” shall include any amendments, modifications, supplements or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated replacements permitted by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments6.12(a).
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Merger Agreement (Wheeler Real Estate Investment Trust, Inc.), Merger Agreement (Cedar Realty Trust, Inc.)
Financing. (a) Purchaser Each of Parent and Sub shall use use, and cause its Affiliates to use, its reasonable best efforts (unless, with respect to any action, another standard for performance is expressly provided for herein) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange consummate and obtain the Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained flex provisions) set forth in the Financing Commitments. Purchaser Agreements and any related Fee Letter (taking into account the anticipated timing of the Marketing Period), including using reasonable best efforts to seek to enforce (including through litigation) its rights under the Debt Commitment Letter in the event of a material breach thereof by the Financing sources thereunder, and shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Financing Commitments Agreements or any related Fee Letter, if such amendment, modification or waiver (except for any such amendments, modifications or waivers which, individually or in i) reduces the aggregate, would not be reasonably expected to prevent, delay or impair the availability aggregate amount of the Financing under (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing CommitmentsAgreements, (ii) satisfy on a timely basis (imposes new or obtain additional conditions or otherwise expands, amends or modifies any of the waiver of) all conditions applicable to Purchaser in the receipt of the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunderin a manner adverse to Parent or the Company, (iii) negotiate with decreases the Lenders and aggregate Equity Financing as set forth in the Equity Financing Commitment delivered on the date hereof, (iv) amends or modifies any other third terms in a manner that would reasonably be expected to (x) delay or prevent the Offer Closing or the Merger Closing Date or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur or (v) adversely impact the ability of Parent or Sub to enforce its rights against the other parties and enter into definitive agreements with respect to the Financing on Agreements. For purposes of clarification, the terms foregoing shall not prohibit Parent from amending the Debt Commitment Letter and subject only any related Fee Letter to add additional lender(s) (and Affiliates of such additional lender(s)) as a party thereto. Any reference in this Agreement to (A) ‘‘Financing” shall include the conditions financing contemplated by the Financing Commitments, (iv) consummate the Financing (Agreements as amended or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments modified in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closingcompliance with this Section 7.08(a), and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice “Financing Agreements” or other written communication from any Person “Debt Commitment Letter” shall include such documents as amended or modified in compliance with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off7.08(a). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.[...]
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
Financing. (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment (including the “flex” provisions) and shall not permit any amendment amendment, supplement or modification to be made to, or any waiver by Purchaser of any provision or remedy under, under the Financing Commitments Commitment (except for any including definitive agreements related thereto) if such amendmentsamendment, modifications supplement, modification or waivers which, individually or in waiver would (i) reduce the aggregate, would not be reasonably expected to prevent, delay or impair aggregate amount of the availability net cash proceeds of the Financing under (as compared to the amount of such aggregate proceeds contemplated by the Financing Commitments Commitment as in effect on the date hereof) or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Financing in a manner that would reasonably be expected to (I) prevent, impede or delay the funding of the Financing or the consummation of the TransactionsMerger and the other transactions contemplated hereunder, (II) without adversely impact the prior written consent ability of Purchaser to enforce its rights against other parties to the Financing Commitment (including definitive agreements related thereto), provided that Purchaser may replace, amend, supplement or modify the Financing Commitment to add agents, co-agents, lenders, arrangers, joint bookrunners, managers or other entities that have not executed the Financing Commitment as of the Sellersdate hereof. Purchaser shall promptly deliver to the Company copies of any such replacement, which consent amendment, supplement, modification or waiver. For purposes of this Section 6.06(a), references to “Financing” shall not include the debt financing contemplated by the Financing Commitment as permitted to be unreasonably withheldamended or modified by this Section 6.06(a) and references to “Financing Commitment” shall include such documents as permitted to be amended, conditioned modified or delayedsubstituted by this Section 6.06(a). Without limiting the generality of the foregoingforegoing and except to the extent Purchaser has completed an offering of debt securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment, which net cash proceeds have been placed in an escrow account in favor of the bondholders on customary terms for high yield bond offerings and which will be available to Purchaser subject solely to conditions precedent that are no more onerous in any material respect than the conditions precedent contained in the Financing Commitment that would have been applicable to the replaced amounts of the Financing, Purchaser shall use its reasonable best efforts to (iw) maintain in effect the Financing CommitmentsCommitment until the Merger, the Subsequent Mergers and the other transactions contemplated hereby are consummated, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iiix) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only Commitment (which with respect to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser bridge facilities documentation shall not be required to agree to until reasonably necessary in connection with the funding of the Financing) on terms and conditions that are, in the aggregate, materially (including “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment, (y) satisfy (or have waived) all conditions and covenants applicable to Purchaser in the Financing Commitment that are within its control at or prior to the Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment (including definitive agreements related thereto), and (z) except to the extent Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing CommitmentsCommitment, consummate the Financing at or prior to the Closing. Upon the reasonable request of the Sellers, Purchaser shall inform keep the Sellers Company reasonably informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing (or replacement thereof) as the Company may reasonably request, and any material developments relating shall provide the Company with copies of all definitive documents related to the FinancingFinancing and, as the Company may reasonably request from time to time, drafts of such documents posted to a lender syndicate group; provided that the Fee Letters may be redacted in accordance with Section 4.12; provided, that in no event will Purchaser be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Purchaser shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Without limiting the generality of the foregoing, Purchaser shall give the Sellers Company prompt notice: notice (Ax) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any of the Financing Commitment Commitments or definitive document agreements related to the Financing; Financing of which Purchaser becomes aware, (By) of the receipt of (A) any written notice or (B) other written communication communication, in each case from any Person Financing Source with respect to any (x1) actual material breach of any of its obligations under the Financing Commitment or potential breach, default, termination or repudiation by any party to any of the Financing Commitment Commitments or any definitive document agreements related to the Financing of any provisions of any the Financing Commitment Commitments or any definitive document agreements related to the Financing or (y2) material dispute or disagreement between or among any parties to any of the Financing Commitment Commitments or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any definitive document related to the Financing; agreement with respect thereto), and (Cz) if at any time for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the termsterms and conditions, in the manner or from the sources contemplated by any of the Financing Commitments or the definitive documents agreements related to the Financing. As soon as reasonably practicable, but in any event within five (5) two Business Days after the date the Sellers deliver Company delivers to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (Ax), (By) or (Cz) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. .
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsCommitment (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to on terms and subject to conditions with respect to any alternative financing that areare not materially less favorable, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitment, in an amount sufficient, when combined with cash on hand and borrowings under any existing credit facilities or other financing arrangements, to consummate the Merger and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Notwithstanding anything to the contrary contained in this Agreement, Purchaser shall have the right from time to time to substitute other debt financing for all or any portion of the Financing from the same and/or alternative financing source; provided, that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated thereby. In such event, the term “Financing Commitment” as used herein shall be deemed to include the new commitment letter (the “New Financing Commitment”), if any, entered into in accordance with this Section 6.06(b) (any financing arranged under this Section 6.06(b) shall be referred to as the “Alternate Financing”). Purchaser will provide the Company with a copy of any New Financing Commitment obtained by Purchaser in connection with an Alternate Financing as promptly as practicable following the execution thereof (other than fees and other information redacted from such agreements that is consistent with the information redacted from the Fee Letters as permitted by Section 4.12). In the event that (x) all or any portion of the Financing contemplated to be raised in lieu of the bridge financing contemplated under the Financing Commitment has not been consummated, (y) all closing conditions contained in Article VII shall have been satisfied or waived (and which are, at the time of the termination of this Agreement, capable of being satisfied if the Closing were to occur at such time) and (z) the bridge facilities contemplated by the Financing Commitments are available on the terms and conditions described in the Financing Commitments, then Purchaser shall draw down on such bridge financing, in an amount sufficient and to the extent necessary, when combined with cash on hand and borrowings under any existing credit facilities or other financing arrangements, to consummate the Merger and the other transactions contemplated hereby, at the Closing. In the event that (x) the ABL Facility has not been amended as contemplated by the Financing Commitment, (y) all closing conditions contained in Article VII shall have been satisfied or waived (and which are, at the time of the termination of this Agreement, capable of being satisfied if the Closing were to occur at such time) and (z) the Replacement ABL Facility (or alternative financing obtained in accordance with this Section 6.06(b)) is available on the terms and conditions described in the Financing Commitments), then Purchaser shall draw down on such Replacement ABL Facility, in an amount sufficient and to the extent necessary, when combined with cash on hand and borrowings under any existing credit facilities or other financing arrangements, to consummate the Merger and the other transactions contemplated hereby, at the Closing. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.06 shall require, and in no event shall the reasonable best efforts of Purchaser be deemed or construed to require, Purchaser to (i) bring any enforcement action, including commencing or filing any Action, against any source of the Financing to enforce its rights under the Financing Commitment or (ii) pay any fees in excess of those contemplated by the Financing Commitment (whether to secure waiver of any conditions contained therein or otherwise); provided, that Purchaser shall pay all fees required by the Financing Commitment as they become due.
(bc) Prior The Company shall (and shall cause its Subsidiaries to) provide to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to providePurchaser, and shall use their commercially reasonable best efforts to cause their Affiliates Representatives of the Company and their respective officersits Subsidiaries to provide to Purchaser, directors, employees and agents to provide, at Purchaser’s sole cost and expenseon a timely basis, all reasonable cooperation in connection with the arrangement and syndication of the Financing as may be reasonably requested by Purchaser and that is customary (including the marketing efforts in connection with Purchaser’s efforts to obtain the Financing, including to (itherewith) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion repayment of any indebtedness of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports Company and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing its Subsidiaries as may be reasonably requested by Purchaser, including by (ivi) assist in providing reasonable cooperation with the preparation ofmarketing efforts of Purchaser and lenders or initial purchasers for any of the Financing, entering into andincluding using reasonable best efforts to cause its Representatives (including senior management and advisors of the Company and its Subsidiaries) to be available, during normal working hours and upon reasonable prior notice notice, to the extent related to the participation participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, and sessions or similar activitieswith rating agencies, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use and using its commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistanceensure that any syndication efforts benefit from any existing Company banking relationships, (viii) cooperate reasonably assisting with the Lenders’ due diligencepreparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda (to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related relating to the FinancingCompany and its Subsidiaries), registration statements, prospectuses, road show presentations and similar documents reasonably necessary or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required advisable in connection with the Financing subject and offering of equity securities of Purchaser contemplated hereby, including the preparation and furnishing in a timely fashion of all financial statements and other data customary to be included in connection therewith (including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the independent accountants for the Company as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722) and all information regarding the Company and its Subsidiaries reasonably required for the Purchaser to prepare pro forma financial statements, financial data, audit reports and other information regarding the Company and its Subsidiaries of the type required by and in compliance with Regulation S-X and Regulation S-K promulgated under the Securities Act of 1933, as amended, and related forms and all information regarding the Company and its Subsidiaries reasonably necessary for the preparation of financial projections and a financial model for the Purchaser after giving effect to the Merger (A) for a registered public offering of debt securities, and of type and form customarily included in private placements of debt securities under Rule 144A, to consummate the offering(s) of debt securities contemplated by the Financing Commitment and (B) for the syndication of bridge loan commitments and facilities and asset based loan commitments and facilities contemplated under the Financing Commitment, (iii) assist with the preparation of definitive financing documents and provide Financing Sources with reasonable access to the properties, books and records of the Company and its Subsidiaries during normal working hours (to the extent practicable) and upon reasonable notice, (iv) using commercially reasonable efforts to cause the Company’s independent auditors to provide, consistent with customary confidentially protections.practice, (A) consent to SEC filings and offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon, in each case, to the extent such consent is required, customary auditors reports and customary comfort letters (including “negative assurance” comfort) with respect to financial information relating to the Company and its Subsidiaries, (B) reasonable assistance in the preparation of pro forma financial statements by Purchaser and (C) provide reasonable assistance and cooperation to Purchaser, including attending accounting due diligence sessions, (v) providing financial and other pertinent information regarding the Company and its Subsidiaries reasonably requested, including unaudited monthly financial statements for the Company and its Subsidiaries on a consolidated basis (excluding footnotes), to the extent the Company customarily prepares such financial statements, within the time frame such statements are prepared, (vi) providing and executing documents as may be reasonably requested by Purchaser (excluding legal opinions and solvency certificates); (vii) using reasonable best efforts to permit the Financing Sources and other prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting system, policies and procedures relating thereto for the purpose of establishing collateral arrangements as of the Closing, including account control agreements, (viii) reasonably cooperating with the Financing Sources and their respective agents with respect to their due diligence, including by giving access to documentation reasonably requested by persons in connection with capital markets transactions, (ix) furnishing Purchaser and the Financing Sources promptly with all documentation and other information required by any Governmental Entity wit
Appears in 2 contracts
Sources: Merger Agreement (RSC Holdings Inc.), Merger Agreement (United Rentals Inc /De)
Financing. (a) Purchaser Buyer 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, proper or advisable to arrange consummate and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment Letters and shall not permit any amendment or modification to be made to, any replacement of all or a portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy provisions under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) Commitment Letters without the prior written consent of the SellersSeller Parent, which consent shall not be unreasonably withheldif such amendment, conditioned modification, replacement or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to waiver (i) maintain in effect reduces the aggregate amount of the Financing Commitmentsto an amount below the amount required, to consummate the Transactions, including the payment of all fees, premiums and expenses associated therewith, (ii) satisfy on imposes additional conditions or any contingencies or otherwise expands upon, amends or otherwise modifies any of the conditions to the receipt of any portion of the Financing in a timely basis manner that would or would reasonably be expected to make any portion of the funding of the Financing (or obtain satisfaction of the waiver ofconditions to obtaining the Financing) all conditions applicable less likely to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunderbe obtained, (iii) negotiate with prevents, impedes or delays the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitmentsoccurrence of Closing, (iv) consummate adversely impacts the Financing (or a portion thereof) at or prior ability of Buyer to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, against any other party to any Financing Commitment Letter or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing Definitive Agreements or (yv) material dispute or disagreement between or among any parties adversely impacts the ability of Buyer to any Financing Commitment or any definitive document related consummate the Transactions. For purposes of this Agreement, (1) the term “Financing” shall be deemed to include the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources financing contemplated by the Financing Commitments Commitment Letters as amended, modified or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation replaced pursuant to this Section 7.05(b6.6 (including any Alternative Financing used to satisfy the obligations under this Agreement), and (2) the term “Commitment Letters” shall delay be deemed to include the Applicable Closing, Commitment Letters as may be amended or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser modified pursuant to this Section 7.05(b) or in connection 6.6 and any commitment letters with respect to the arrangement Alternative Financing. Buyer acknowledges and agrees that neither the obtaining of the Financing or (2) any information utilized in connection therewith (Alternative Financing is a condition to Buyer’s obligations to consummate the Transactions and the other than information relation to Sellers approved transactions contemplated by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Medicines Co /De), Purchase and Sale Agreement (Melinta Therapeutics, Inc. /New/)
Financing. (a) Purchaser Each of Parent and Merger Subsidiary 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment Letters, and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments Commitment Letters if such amendment, modification or waiver (except for any such amendments, modifications i) reduces (or waivers which, individually or in could have the aggregate, would not be reasonably expected to prevent, delay or impair effect of reducing) the availability aggregate amount of the Financing under (including by increasing the amount of fees to be paid or original issue discount unless (A) the Debt Financing or the Equity Financing is increased by a corresponding amount and (B) after giving effect to any of the transactions referred to in clause (A) above, the representations and warranties set forth in Section 5.06 shall be true) or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing, or otherwise expands, amends or modifies any other provision of the Financing Commitments Commitment Letters in a manner that would reasonably be expected to (A) delay or prevent or make less likely the consummation funding of the Transactions) without the prior written consent Financing (or satisfaction of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting conditions to the generality Financing) on the date of the foregoingClosing or (B) adversely impact the ability of Parent or Merger Subsidiary to enforce its rights against other parties to the Financing Commitment Letters or definitive documents relating thereto (provided that, Purchaser subject to compliance with the other provisions of this Section 7.05(a), Parent and Merger Subsidiary may amend the Debt Commitment Letters to add additional lenders, arrangers, bookrunners and agents). Parent and Merger Subsidiary shall promptly notify and deliver to the Company copies of any such amendment, modification or replacement.
(b) Each of Parent and Merger Subsidiary shall use its reasonable best efforts to (i) to maintain in full force and effect the Financing CommitmentsCommitment Letters, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing Commitment Letters on the terms and subject only to the conditions contemplated by contained in the Financing CommitmentsCommitment Letters (or on terms no less favorable to Parent or Merger Subsidiary than the terms and conditions in the Financing Commitment Letters), (iviii) to satisfy on a timely basis all conditions to funding in the Financing Commitment Letters and such definitive agreements thereto and to consummate the Financing (or a portion thereof) Financing, in each case, at or prior to the Applicable Closing, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Financing to fund the Financing at the Closing, (viv) to enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, Commitment Letters and (viv) otherwise cause the Lenders to fund on the Applicable Closing Date comply with its obligations under the Financing (or Commitment Letters. Parent shall keep the Company informed on a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms reasonably current basis and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Financing and any material developments relating to the Debt Financing. Without limiting the generality of the foregoing, Purchaser Parent and Merger Subsidiary shall give the Sellers Company prompt notice: notice (A) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any of the Financing Commitment Letters or definitive document agreements related to the Financing; Financing of which Parent or Merger Subsidiary becomes aware, and (B) of the receipt of (x) any written notice or (y) other written communication communication, in each case from any Person Financing source with respect to any (x1) actual or potential breach, default, termination or repudiation by any party to any of the Financing Commitment Letters or any definitive document agreements related to the Financing of any provisions of any the Financing Commitment Letters or any definitive document agreements related to the Financing or (y2) material dispute or disagreement between or among any parties to any of the Financing Commitment Letters or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document agreements related to the Financing with respect to the obligation to fund the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion the amount of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financingbe funded at Closing. As soon promptly as reasonably practicable, but in any event within five two (52) Business Days after of the date the Sellers deliver Company delivers to Purchaser Parent or Merger Subsidiary a written requestrequest therefor, Purchaser Parent and Merger Subsidiary shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (A), (B) or (CB) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in Upon the failure occurrence of any conditions contained circumstance referred to in clause (A) or (B) of the Financing Commitments second preceding sentence or any definitive agreement related thereto. If if any portion of the Debt Financing otherwise becomes unavailable on unavailable, and such portion is reasonably required to fund an amount sufficient to consummate the Merger upon the terms contemplated by this Agreement and conditions contemplated in the Financing Commitmentspay all related fees and expenses of Parent, Purchaser Merger Subsidiary and their respective Representatives pursuant to this Agreement, then Parent and Merger Subsidiary shall use its their reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources replacement debt commitment letters (each a “Replacement Debt Commitment Letter”) in an amount sufficient to replace consummate the Financing as promptly as practicable transactions contemplated hereby, provided that, Parent and without the imposition of any new or additional conditions and without any adverse amendment Merger Subsidiary shall have no obligation to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to obtain Replacement Debt Commitment Letters on terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser Parent and Merger Subsidiary (or their Affiliates) than those the terms and conditions set forth in the Financing Commitments.
(b) Prior Debt Commitment Letters. Parent and Merger Subsidiary shall, upon request of the Company, keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange any Replacement Debt Commitment Letters and shall provide to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, Company true and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, complete copies of all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar material documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsReplacement Debt Commitment Letters.
Appears in 2 contracts
Sources: Merger Agreement (ChyronHego Corp), Merger Agreement (ChyronHego Corp)
Financing. (a) Purchaser During the period commencing on the date hereof and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII, each of Parent and Merger Sub shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange arrange, obtain and obtain consummate the Financing as promptly as reasonably practicable on the terms and subject only to conditions described in or contemplated by the conditions contained Commitment Letters (including complying with any request requiring the exercise of so-called “market flex” provisions in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toFee Letter in connection with the Debt Financing), or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts to to:
(i) maintain in full force and effect the Commitment Letters (subject to Parent’s right to replace, restate, supplement, modify, assign, substitute or amend the Commitment Letters in accordance herewith);
(ii) negotiate and execute definitive agreements with respect to the Debt Financing Commitmentson the terms contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto), or on such other terms that, taken as a whole, (i) would not reduce the aggregate amount of the Financing available to be funded at the Closing below the amount required to fund the Financing Uses (taking into account any increase in any other Financing and other available sources) and (ii) are no less favorable in the aggregate to Parent and Merger Sub than the terms set forth in the Debt Commitment Letter as in effect on the date of this Agreement (as determined by Parent in its reasonable judgment) (including any “market flex” provisions applicable thereto), in each case, which terms shall not impose, nor permit the imposition of, any new conditions (or the modification or expansion of any existing conditions) or the limitation, amendment or waiver of any applicable remedies available with respect to the Financing (such definitive agreement, the “Definitive Financing Agreements”);
(iii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser precedent in the Commitment Letters and such Definitive Financing Commitments Agreements that are to be satisfied by, and within its the control of, Parent and/or Merger Sub, including (without limitation) the satisfaction of conditions relating to (A) the preparation and otherwise comply with its covenants and other obligations thereunderdelivery of pro forma financial statements, (iiiB) negotiate the payment of fees and expenses, (C) the execution and/or delivery of documents and instruments in connection with the Lenders Debt Financing, and other third parties (D) the delivery of any applicable beneficial ownership certification and enter into definitive agreements with respect information under applicable “know your customer” and anti-money laundering rules and regulations, in each case, relating to the Financing on the terms Parent, Merger Sub and subject only to the conditions contemplated by the Financing Commitments, its Affiliates; and
(iv) consummate upon the reasonable request of the Company, confirm with the Debt Financing Sources their intent and ability to perform, and the availability of the Debt Financing, under the Debt Commitment Letter, subject in each case to satisfaction or waiver of the Financing Conditions (including consummation of the Equity Financing), and that neither Parent nor the Debt Financing Sources are aware of any event or condition that could reasonably be expected to result in the failure of a portion thereofFinancing Condition; and
(v) in the event that all conditions in Exhibit C to the Debt Commitment Letter (other than conditions that by their nature are to be satisfied at the Closing) have been satisfied (other than those conditions that would be expected to be satisfied substantially concurrently with the Closing), consummate or cause to be consummated the Financing at or prior to the Applicable Closing. Parent shall, (v) enforce its rights under upon the Company’s reasonable written request, provide the Company with copies of any Definitive Financing Commitments in Agreements and such other information and documentation regarding the event Debt Financing as shall be reasonably necessary to allow the Company to monitor the progress of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closingsuch financing activities. Parent and Merger Sub shall not, and Parent shall cause its other Subsidiaries not to, take any action (viincluding by incurring any indebtedness other than the Debt Financing or Alternative Financing in accordance with Section 6.10(b)) otherwise that would reasonably be expected to cause the Lenders to fund on the Applicable Closing Date the Debt Financing (or Alternative Financing in accordance with Section 6.10(b)) not to be available to fund the Financing Uses on the Closing Date. Upon the reasonable written request of the Company, Parent shall promptly, and in any event within two (2) Business Days, inform the Company in reasonable detail of any material developments concerning the status of its and Merger Sub’s efforts to arrange the Debt Financing and provide any information reasonably requested by the Company relating thereto. During the period commencing on the date of this Agreement and termination on the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII, neither Parent nor Merger Sub (nor any of their Affiliates) will take any action in connection with the Debt Financing that would require the Company to make any filings with the SEC or include information in such filings that the Company would not otherwise reasonably expect to have included in its filings with the SEC at such time.
(b) In the event that all conditions in Exhibit C to the Debt Commitment Letter (other than conditions that by their nature are to be satisfied at the Closing) have been satisfied (other than those conditions that would be expected to be satisfied substantially concurrently with the Closing) and the Debt Financing shall not have been funded at or prior to the Closing, Parent shall use commercially reasonable efforts to cause the Debt Financing and the Person committing to provide the Debt Financing to comply with its obligations under the Debt Commitment Letter and the Definitive Financing Agreements to which they are a party and to cause such Person to fund such Debt Financing.
(c) In the event that any portion thereofof the Debt Financing becomes unavailable on the terms and conditions (including any “market flex” provisions applicable thereto) required contemplated in the Debt Commitment Letter prior to the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII (other than by reason of breach of this Agreement by the Company), Parent shall promptly upon becoming aware thereof notify the Company, and each of Parent and Merger Sub shall use their respective reasonable best efforts to take, or cause to be taken, as promptly as practicable after the date hereof, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain alternative financing from the same or alternative sources in an amount sufficient, when added to the portion of the Financing that is and remains available to Parent, to consummate the transactions contemplated by this Agreement and to be consummated pay all Financing Uses at the Applicable Closing (including taking enforcement action to cause the Lenders to “Alternative Financing”) and provide the FinancingCompany with a copy of the new financing commitment that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”) promptly upon the effectiveness thereof, which Alternative Financing Commitment Letter shall not be required to include terms, fees, interest rates and other costs and conditions (including any “market flex” provisions applicable thereto) that, taken as a whole, are materially less beneficial to Parent or Merger Sub than those terms, fees, interest rates and other costs and conditions contemplated in the Debt Commitment Letter (including any “market flex” provisions applicable thereto); provided, that Purchaser Parent and Merger Sub shall not be required have no obligation to agree to terms and conditions that are, in seek the aggregate, materially less favorable to Purchaser cash equity from any source other than those counter parties to the Equity Commitment Letter, or in any amount with respect to an investor in excess of such investor’s commitment. As applicable, references in this Agreement (other than with respect to representations in this Agreement made by Parent and Merger Sub that speak as of the date hereof) (i) to Financing or Debt Financing, as applicable, shall include Alternative Financing, as applicable, (ii) to Commitment Letter or Debt Commitment Letter, as applicable, shall include the Alternative Financing Commitment Letter, as applicable and (iii) to Definitive Financing Agreements shall include the definitive documentation relating to any such Alternative Financing. Parent shall promptly deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing necessary to fund the Financing Uses; provided, that any specific fee amounts and any specific “market flex” provisions applicable thereto set forth in therein may be redacted so long as such redacted terms do not impose, or permit the Financing Commitments. Upon imposition of, new or additional conditions precedent or the reasonable request expansion of any existing conditions precedent to the funding of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Debt Financing. .
(d) Without limiting the generality of Section 6.15(c), Parent shall promptly (and, in any event, within two (2) Business Days) notify the foregoing, Purchaser shall give Company in writing of the Sellers prompt noticeoccurrence of any of the following: (Ai) upon becoming aware termination, withdrawal, repudiation, rescission, cancellation or expiration of any material Commitment Letter of which Parent becomes aware, (ii) any breach or default under any Commitment Letter by any party to such Commitment Letter of which Parent becomes aware, and (iii) receipt by any of Parent, Merger Sub or any event of its Affiliates or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt Representatives of any written notice or other written communication from any Person Debt Financing Source with respect to any (xA) actual or potential threatened (in writing) breach, default, termination termination, withdrawal, repudiation, rescission or repudiation cancellation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing Letter or (yB) material dispute or disagreement between or among Parent, on the one hand, and any parties to any Debt Financing Commitment or any definitive document related to Source, on the Financing; and (C) other hand, in each case if for any reason Purchaser believes in good faith that (x) there is as a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) result thereof it is reasonably likely that it Parent will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources terms and conditions contemplated by the Financing Commitments or the definitive documents related to the FinancingCommitment Letters. As soon as reasonably practicable, but in any event within five two (52) Business Days after the date the Sellers deliver to Purchaser a written any such request, Purchaser Parent shall provide to the Company and its Representatives any information reasonably requested by the Sellers Company relating to any circumstance of the circumstances referred to in clause this Section 6.15(c).
(Ae) During the period commencing on the date of this Agreement and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to Article VIII, Parent and Merger Sub shall not without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), permit, consent to or agree to (i) any amendment, restatement, replacement, supplement, termination, reduction, cancellation or other modification or waiver of any condition, provision or remedy under, the Equity Commitment Letter (other than to increase the amount of Equity Financing available thereunder), (ii) any amendment, restatement, replacement, supplement, termination, cancellation or other modification or waiver of any condition, or provision or remedy under, the Debt Commitment Letter, if such amendment, restatement, supplement, termination, cancellation, modification or waiver would (A) impose new or additional conditions precedent to the funding of the Debt Financing or would otherwise change, amend, modify or expand any of the conditions precedent to the funding of the Debt Financing, in any such case, from those set forth in the Debt Commitment Letter on the date of this Agreement in such a manner that could be reasonably expected to materially impair, materially delay or prevent the Closing, (B) reduce the aggregate amount of the Debt Financing below an amount sufficient to fund the Financing Uses on the Closing (taking into account any increase in any other Financing and other available sources) or (C) otherwise materially and adversely affect the ability of the immediately preceding sentenceParent or Merger Sub to enforce their rights under the Commitment Letters or to consummate the transactions contemplated by this Agreement; provided however, for the avoidance of doubt, Parent and Merger Sub may (x) amend, supplement and/or modify the Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Commitment Letter as of the date hereof and (y) correct non-substantive typographical errors. Purchaser Parent shall refrain from taking, directly or indirectly, any action that is reasonably likely furnish to result in the failure Company a copy of any conditions contained in the Financing Commitments amendment, restatement, replacement, supplement, modification, waiver or any definitive agreement related thereto. If any portion consent of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions relating to the Financing, and Purchaser’s obligations under Debt Commitment Letter promptly upon execution thereof. For purposes of this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions Agreement (other than with respect to any alternative financing representations in this Agreement made by Parent and Merger Sub that arespeak as of the date hereof), references to the “Debt Commitment Letter” shall include such document as permitted or required by this Section 6.15 to be amended, restated, replaced, supplemented or otherwise modified or waived, in each case from and after the aggregatedate of such amendment, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsrestatement, replacement, supplement or other modification or waiver.
(bf) Prior Notwithstanding anything in this Section 6.15 to the Applicable Closingcontrary, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of Parent and Merger Sub acknowledges and agrees that neither the Sellers with respect receipt by Parent or Merger Sub nor the availability to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) Parent or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement Merger Sub of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) financing shall be kept confidential by them in accordance with a condition to the Confidentiality Agreement, except for disclosure obligations of Parent or Merger Sub to potential investors as required in connection with consummate any of the Financing subject to customary confidentially protectionstransactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (American Renal Associates Holdings, Inc.), Merger Agreement (American Renal Associates Holdings, Inc.)
Financing. (a) Purchaser Parent and Acquisition Sub shall not permit any amendment, modification, supplement, or replacement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the consent of the Company if such amendment, modification, supplement, replacement or waiver (i) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing, (ii) imposes new or additional conditions or otherwise expands or adversely amends or modifies any of the conditions to the Debt Financing, (iii) would modify the confidentiality provisions of the Debt Commitment Letter in any respect or (iv) would reasonably be expected to (A) materially delay, prevent, or impede the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) or the consummation of the Offer, the Merger and the other Transactions or (B) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Debt Commitment Letter or the Definitive Financing Agreements (as defined below) (provided that Parent and Acquisition Sub may amend or replace the Debt Commitment Letter to add or replace lenders, arrangers or similar entities so long as such action would not reasonably be expected to materially delay, prevent, or impede the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) or the consummation of the Offer, the Merger and the other Transactions, or adversely impact Parent’s or Acquisition Sub’s ability to enforce its rights under the Debt Commitment Letter). Parent and Acquisition Sub shall promptly deliver to the Company true and complete copies of any such amendment, modification or replacement. For purposes of this Agreement, references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended or modified by this Section 7.13(a) and references to “Definitive Financing Agreements” or “Debt Commitment Letter” shall include such documents as amended or modified in accordance with this Section 7.13(a).
(b) Parent and Acquisition Sub shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained set forth in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toDebt Commitment Letter by the Acceptance Time (assuming, or any waiver of any provision or remedy underfor the purposes hereof, the Financing Commitments that (except for any such amendments, modifications or waivers which, individually or a) in the aggregateevent that no Financing Extension Notices have been delivered, would not that no such Financing Extension Notices will be delivered and that the Acceptance Time will occur on the date, as reasonably expected estimated by the Parties, on which all conditions set forth on Annex II related to preventAntitrust Laws have been satisfied, delay and (b) in the event that one or impair more Financing Extension Notices have been delivered, that the availability Acceptance Time will occur no later than 9:00 a.m. Eastern Time on the business day immediately following the then scheduled expiration date of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersOffer), which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including by using their reasonable best efforts to (i) to maintain in effect the Financing CommitmentsDebt Commitment Letter, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions contained in the Debt Commitment Letter or on other terms (subject only to the conditions contemplated by limitations contained in Section 7.13(a)) that would not reasonably be expected to materially prevent or delay the Offer, the Merger, and the other Transactions or the date on which the Debt Financing Commitments, (iv) consummate could be obtained or make the funding of the full amount of the Debt Financing (or a portion thereof) at less likely to occur on or prior to the Applicable ClosingAcceptance Time (assuming, for the purposes hereof, that (va) enforce its rights under the Financing Commitments in the event that no Financing Extension Notices have been delivered, that no such Financing Extension Notices will be delivered and (b) in the event that one or more Financing Extension Notices have been delivered, that the Acceptance Time will occur no later than 9:00 a.m. Eastern Time on the business day immediately following the then scheduled expiration date of the Offer), (iii) to comply on a breach timely basis with (or other failure obtain any waiver of) their covenants and obligations set forth in, and satisfy (or obtain a waiver of) on a timely basis all conditions to the funding in, the Debt Commitment Letter and the Debt Financing Agreements, in each case, as necessary to consummate the Transactions and satisfy all obligations of Parent and Acquisition Sub pursuant to this Agreement, including to pay the aggregate Offer Price at the Acceptance Time and the aggregate Merger Consideration on the Closing Date and satisfy the obligations of Parent under Section 3.4, and to pay any fees and expenses of or payable by Parent, Acquisition Sub, and the Surviving Corporation. In the event that all conditions contained in the Commitment Letter or the Definitive Financing Agreements have been satisfied, Parent shall cause the Debt Providers thereunder to comply with their respective obligations, including to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Debt Financing (or a portion thereof) required to consummate the transactions Transactions on the Closing Date, including to be consummated pay the aggregate Offer Price at the Applicable Acceptance Time and the aggregate Merger Consideration on the Closing Date and satisfy the obligations of Parent under Section 3.4, and to pay any fees and expenses of or payable by Parent, Acquisition Sub, and the Surviving Corporation (including taking enforcement action by promptly commencing a litigation proceeding against any breaching Debt Provider to cause the Lenders compel such Debt Provider to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request its portion of the SellersDebt Financing or otherwise comply with its obligations under the Debt Commitment Letter or Definitive Financing Agreements). Parent and Acquisition Sub shall comply with their obligations, Purchaser and enforce their rights, under the Debt Commitment Letter and Definitive Financing Agreements in a timely and diligent matter. In each case promptly upon the Company’s request to Parent and Acquisition Sub, Parent and Acquisition Sub shall inform (A) provide to the Sellers Company copies of all substantially final drafts and executed definitive agreements for the Debt Financing Agreements (excluding any provisions related solely to fees and other economic terms), and (ii) keep the Company reasonably informed of the status of its their efforts to arrange the Financing and Debt Financing.
(c) In the event that, at any material developments relating time prior to the Financing. Without limiting Effective Time, (i) the generality of the foregoingDebt Commitment Letter is terminated for any reason, Purchaser shall give the Sellers prompt notice: (Aii) upon becoming Parent or Acquisition Sub becomes aware of any material breach or default (by any party to the Debt Commitment Letter or any event or circumstance thatDebt Financing Agreement, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default(iii) by Purchasera counterparty provides notice that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth in the Debt Commitment Letter, or (iv) any portion of the Debt Financing becomes unavailable for any reason, Parent will (A) use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with the available portion of the Debt Financing, to consummate the Transactions on the Closing Date and satisfy all of the obligations of Parent and Acquisition Sub hereunder, including the payment of the aggregate Offer Price at the Acceptance Time and the aggregate Merger consideration on the Closing Date and Parent’s obligations under Section 3.4, and to pay any fees and expenses of or payable by Parent, Acquisition Sub, and the Surviving Corporation) from the same or other sources and which does not include any conditions to the Knowledge consummation of Purchaser, any other party to any such alternative debt financing that are more onerous than the conditions set forth in the Debt Commitment Letter and Definitive Financing Commitment or definitive document related to the Financing; Agreements and (B) promptly notify the Company of such unavailability and the reason therefor; provided, that in no event will Parent or Acquisition Sub be under any obligation to disclose any information that (A) is subject to attorney-client or similar privilege if Parent or Acquisition Sub shall have used its reasonable best efforts to disclose such information in a manner that would not waive such privilege, or (B) would contravene any Law. In furtherance of and not in limitation of the foregoing, in the event that (1) any portion of the Debt Financing structured as high yield bond financing shall become unavailable, regardless of the reason therefor and (2) all conditions contained in Annex II shall have been satisfied or waived (other than (x) any such conditions that by their nature are to be satisfied at the expiration of the Offer, but subject to the satisfaction or waiver of such conditions at the expiration of the Offer, and (y) those conditions the failure of which to be satisfied is attributable to a breach by Parent or Acquisition Sub of their representations, warranties, covenants or agreements contained in this Agreement), and (3) the term loan credit facilities contemplated by the Debt Commitment Letter (or alternative facilities obtained in accordance with this Section 7.13) are available on the terms and conditions described in the Debt Commitment Letter (or replacements thereof), then each of Parent and Acquisition Sub shall cause the proceeds of such term financing to be used immediately in lieu of such affected portion of the high yield bond financing. For the purposes of this Agreement, references to “Debt Financing” shall include any alternative financing arranged in compliance herewith (and any Debt Financing pursuant to any Debt Commitment Letter or Definitive Financing Agreement remaining in effect at the time in question), and references to “Debt Commitment Letter” and “Definitive Financing Agreements” shall include any commitment letter (or similar agreement) with respect thereto and any definitive documents or agreements with respect thereto, respectively (and any Debt Commitment Letter and Definitive Financing Agreements, respectively, remaining in effect at the time in question). Parent shall provide the Company with prompt written notice of any breach or default by any party to the Debt Commitment Letter or any Definitive Financing Agreements and the receipt of any written notice or other written communication from any Person Debt Provider or other financing source with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing the Debt Commitment Letter or any definitive document related to the Definitive Financing Agreement of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsprovision thereof.
(bd) Prior Notwithstanding anything to the Applicable Closingcontrary contained herein, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial Parent’s and other information relating Acquisition Sub’s obligations hereunder shall not constitute a condition to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion consummation of the Financing by the LendersTransactions, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda compliance by Parent and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers Acquisition Sub with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers 7.13 shall not (A) be required relieve Parent of its obligation to pay any commitment consummate the transactions contemplated by this Agreement whether or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to not the Financing, or (C) incur any out-of-pocket expense unless such expense Debt Financing is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsavailable.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Financing. The Buyer undertakes to the Seller that:
(a) Purchaser the Buyer 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, proper necessary or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable following the date of this deed and to consummate the Debt Financing on the Completion Date, including (in each case at its own cost, and indemnifying and holding harmless the Seller from any costs incurred by the Seller in respect of any of the following):
(i) maintaining in effect the Commitment Letters;
(ii) participation by senior management of the Buyer in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iii) causing the Debt Financing to be consummated upon satisfaction of the Debt Financing Conditions;
(iv) satisfying on a timely basis all Debt Financing Conditions;
(v) negotiating, executing and delivering the definitive agreements that reflect the terms contained in the Commitment Letters or on such other terms acceptable to the Buyer and its financing sources (Debt Financing Documents);
(vi) in the event that the Debt Financing Conditions have been satisfied, or upon funding would be satisfied, cause the financing providers to fund the full amount of the Debt Financing; and
(vii) enforcing its rights under the Commitment Letters in the event of a Financing Failure Event (including by seeking damages or taking other enforcement actions, including seeking an order of specific performance), and assisting in the Seller enforcing such rights directly if the Seller so elects; Share sale deed 89
(b) neither the Buyer nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace any of the Commitment Letters or any Debt Financing Document except for substitutions and replacements as a result of any alternative financing to be obtained pursuant to clause 33.1(c);
(c) without limiting the Buyer’s other obligations under this clause 33, or the Seller’s other rights, if a Financing Failure Event occurs, the Buyer shall:
(i) immediately notify the Seller of such Financing Failure Event and the reasons therefore;
(ii) in consultation with the Seller, obtain alternative financing from alternative financing sources in an amount sufficient to make the payments required under this deed (including the Completion Payment) and consummate the transactions contemplated by this deed (Alternative Financing), as promptly as practicable following the occurrence of the Financing Failure Event;
(iii) obtain, and when obtained, provide the Seller with a copy of, a new financing commitment and/or the definitive agreements that reflect such new financing commitment (Alternative Financing Documents), subject only to conditions precedent (Alternative Financing Conditions) substantially the conditions contained same as the Debt Financing Conditions; and
(iv) be deemed to warrant to the Seller as at Completion by reference to the facts and circumstances then existing all the statements set out in paragraph 1.4 of Schedule 8 mutatis mutandis, it being specified that any reference to the “Debt Financing” will be deemed to be a reference to the “Alternative Financing”, any reference to “Commitment Letters” shall be deemed to be a reference to the “Alternative Financing Commitments. Purchaser Documents” and any reference to “Debt Financing Conditions” shall be deemed to be a reference to the “Alternative Financing Conditions”;
(d) the Buyer shall give the Seller prompt notice of any breach, repudiation, or threatened or anticipated breach or repudiation, by any party to the Commitment Letters or the Debt Financing Documents (or to the agreements in connection with the Alternative Financing to be obtained in accordance with clause 33.1(c)) of which the Buyer or its Affiliates becomes aware;
(e) the Buyer shall not permit consent to any amendment assignment or modification rights or obligations under the Commitment Letters or any Debt Financing Document (or any agreement in connection with the Alternative Financing to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or obtained in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactionsaccordance with clause 33.1(c)) without the prior written consent approval of the SellersSeller, which consent shall such approval not to be unreasonably withheld, conditioned or delayed. Without limiting ; and
(f) the generality of Buyer shall keep the foregoing, Purchaser shall use Seller informed in reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Debt Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Alternative Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them obtained in accordance with clause 33.1(c)), provided, for the Confidentiality Agreementavoidance of doubt, except for disclosure that in no event shall the receipt by, or the availability of any funds or financing to, the Buyer or any of its Affiliates (including the Debt Financing) be a condition to potential investors as required in connection with the Financing subject Buyer’s obligation to customary confidentially protections.consummate the transactions contemplated by this deed. Share sale deed 90
Appears in 1 contract
Financing. (a) Subject to the terms and conditions hereof, the Purchaser shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing CommitmentsCommitments and to satisfy the conditions to obtaining the Financing set forth therein (including, without limitation, by funding the equity contemplated by the Equity Financing Commitment), (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive financing agreements with respect to the Debt Financing on (the “Debt Financing Agreement”) so that the Debt Financing Agreement is in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Financing at or prior to Closing. The Purchaser will comply with its conditions and covenants under the Financing Commitments and will not terminate, amend, modify or supplement (or consent or agree to the termination, amendment, modification or supplementing of) in any respect, the terms and subject only to the conditions contemplated by of the Financing Commitments, without the prior written consent of the Company (ivsuch consent not to be unreasonably withheld or conditioned), except to amend or modify in a manner more favorable to the Purchaser; provided, that in no event shall any such amendments, modifications or supplements cause the representation made in Section 5.4(a) consummate to become untrue as if made on the date of such amendment, modification or supplement or relieve the parties to the Financing Commitments from their obligations under the Financing Commitments to provide the Financing (or a portion thereof(A) at limit the Purchaser’s rights to require them to do so, (B) impose any new or prior more onerous conditions to the Applicable Closing, (v) enforce its rights under funding obligations of such parties to the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (viC) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those the Company), in each case on the terms set forth in the Financing CommitmentsCommitments without giving effect to any such amendment, modification or supplement. Upon the reasonable request of the Sellers, The Purchaser shall inform agree to use the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources bridge facility contemplated by the Financing Commitments or to cause the definitive documents related Closing to the Financing. As occur as soon as reasonably practicable, practicable but in any event within five no later than (5X) Business Days 30 days after the date satisfaction of the Sellers deliver condition contained in Paragraph 6 of Exhibit C to Purchaser the Debt Commitment Letter if such satisfaction occurs before November 28, 2005 (the “Initial Period”) or (Y) 20 days after the satisfaction of the condition contained in Paragraph 6 of Exhibit C to the Debt Commitment Letter if such satisfaction occurs on or after November 28, 2005; provided, however, if the last day of either such period falls on a written requestweekend such period will be extended to the next Business Day and if the Initial Period ends on or after November 23, 2005, such period shall be extended 3 Business Days. The Purchaser shall provide any information reasonably requested by to the Sellers Company copies of all documents relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is shall keep the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative Company informed of the status of the financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provideprocess relating thereto. The Company shall, and shall use their commercially reasonable efforts to cause their Affiliates its Subsidiaries and their respective officersRepresentatives to, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable provide such cooperation in connection with the arrangement of the Financing as may be reasonably requested by the Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Debt Financing, including to by (i) provide readily-available financial providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries, (ii) providing assistance in preparation of confidential information memoranda and other information relating to the Sellers to the Lenders (including information similar materials to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for connection with obtaining the Financing, (iii) cause providing assistance in the Sellers preparation for, and their Affiliates participating in, meetings, due diligence sessions, road shows and similar presentations to execute and deliver (with, among others, prospective lenders, investors and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaserrating agencies, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit a loan agreement, note purchase agreement, indentureregistration rights agreement, hedging agreement indenture and related documents, so long as such documents provide that the Company shall not have any liability or other agreement obligation under such documents until the consummation of the transactions contemplated hereby, and (v) providing the financial information necessary for the satisfaction of the obligations and conditions set forth in the Commitment Letters within the time periods required thereby in order to permit a Closing Date on or document related prior to the FinancingEnd Date.
(b) If, or (C) incur notwithstanding the use of commercially reasonable efforts by the Purchaser to satisfy its obligations under Section 6.6(a), any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing Commitments or the Debt Financing Agreement expire or are terminated prior to the Closing, in whole or in part, for any reason, the Purchaser shall (2i) any information utilized promptly notify the Company of such expiration or termination and the reasons therefor and (ii) use its commercially reasonable efforts (subject to the limitations set forth in connection therewith (other than information relation Section 6.6(a)) promptly to Sellers approved arrange for alternative financing to replace the financing contemplated by Sellers for use therein). This indemnification shall survive termination of such expired or terminated commitments or agreements, in an amount sufficient to consummate the transactions contemplated by this Agreement. All material, non-public information regarding Sellers and their Affiliates provided Agreement on terms not materially less beneficial to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them (as determined in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsreasonable judgment of Purchaser).
Appears in 1 contract
Sources: Merger Agreement (Accellent Corp.)
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement (including Section 5.10(e) hereof), each of Parent and Merger Sub 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained flex provisions) described in the Financing Commitments. Purchaser Letters and any related Fee Letter (taking into account the anticipated timing of the Marketing Period) and, without the consent of the Company, shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Financing Commitments Letters or any related Fee Letter, if such amendment, modification or waiver (except for any such amendments, modifications or waivers which, individually or in i) reduces the aggregate, would not be reasonably expected to prevent, delay or impair the availability aggregate amount of the Financing under (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Financing Commitments Letters, or (ii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing Date, (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur or (z) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Equity Financing Letter when required pursuant to Section 10.16(b) of this Agreement or the consummation definitive agreements with respect thereto. For purposes of clarification, the Transactions) without the prior written consent of the Sellers, which consent foregoing shall not be unreasonably withheld, conditioned or delayed. Without limiting prohibit Parent from amending the generality of the foregoing, Purchaser shall use reasonable best efforts Debt Commitment Letter and any related Fee Letter to (i) maintain in effect the Financing Commitments, add or replace lender(s) (and Affiliates of such additional lender(s)) as a party thereto or (ii) satisfy on a timely basis (or obtain make such other changes that would not adversely impact the waiver of) all conditions applicable ability of Parent to Purchaser in consummate the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing transactions contemplated hereby on the terms and subject only contained herein. Any reference in this Agreement to (A) “Financing” shall include the conditions financing contemplated by the Financing Commitments, (iv) consummate the Financing (Letters as amended or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments modified in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, compliance with this Section 5.10 and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice “Financing Letters” or other written communication from any Person “Debt Commitment Letter” shall include such documents as amended or modified in compliance with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments5.10(a).
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Logan's Roadhouse of Kansas, Inc.)
Financing. (a) 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, proper or advisable to arrange obtain funds sufficient to fund the Financing Amounts on or prior to the date on which the Transaction is required to be consummated pursuant to the terms hereof. In furtherance, and not in limitation of the foregoing, Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing as promptly as reasonably practicable on the terms and subject only to the conditions described in the Commitment Letter as promptly as possible but in any event prior to the date on which the Transaction is required to be consummated pursuant to the terms hereof, including by: (i) maintaining in effect the Commitment Letter, (ii) satisfying on a timely basis all conditions in the Commitment Letter and complying with its obligations thereunder and (iii) enforcing its rights under the Commitment Letter. Purchaser shall comply with its obligations, and enforce its rights, under the Commitment Letter in a timely and diligent manner. Without limiting the generality of the foregoing, in the event that all conditions contained in the Financing Commitments. Commitment Letter (other than the consummation of the Transaction, those conditions that by their nature are to be satisfied at Closing and those conditions the failure of which to be satisfied are attributable to a breach by Purchaser of its representations, warranties, covenants or agreements contained in this Agreement) have been satisfied, Purchaser shall not permit cause the Equity Investor to comply with its obligations thereunder.
(b) Neither Purchaser nor any amendment of its Subsidiaries shall, without the prior written consent of Seller, (i) permit, consent to or agree to any amendment, replacement, supplement, termination or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments Commitment Letter if such amendment, replacement, supplement, modification, waiver or remedy (except for A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the aggregate principal amount of the Financing, (C) adversely affects the ability of Purchaser to enforce its rights against other parties to the Commitment Letter as so amended, replaced, supplemented or otherwise modified, relative to the ability of Purchaser to enforce its rights against such amendments, modifications other parties to the Commitment Letter as in effect on the date hereof or waivers which, individually or in the aggregate, would not (D) could otherwise reasonably be reasonably expected to prevent, impede or delay or impair the availability of the Financing under the Financing Commitments or the consummation of the TransactionsTransaction and the other transactions contemplated by this Agreement (the effects described in clauses (A) without through (D), collectively, the prior written consent “Prohibited Modifications”); or (ii) terminate or cause the termination of the SellersCommitment Letter. Purchaser shall promptly deliver to Seller copies of any amendment, which consent shall not be unreasonably withheldmodification, conditioned waiver, replacement, supplement or delayed. Without termination to the Commitment Letter.
(c) In the event that any portion of the Financing becomes unavailable, regardless of the reason therefor, Purchaser will (i) promptly notify Seller in writing of such unavailability and the reason therefor and (ii) use reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such unavailable portion from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing, to consummate the Transaction and to pay the Financing Amounts and, without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the cause such Alternative Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that not include any Prohibited Modifications. Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers provide Seller with prompt notice: (A) upon becoming aware written notice of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential threatened breach, default, cancellation, termination or repudiation by any party to any Financing the Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentenceLetter. Purchaser shall refrain from taking, directly or indirectly, any action that is keep Seller reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion informed on a current basis of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use status of its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain consummate the Financing, including any Alternative Financing.
(d) The foregoing notwithstanding, compliance by Purchaser with this Section 5.7 shall not relieve Purchaser of its obligations to (i) provide readily-available financial and other information relating to consummate the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing transactions contemplated by this Agreement whether or reasonably necessary for the completion of not the Financing by the Lenders, to or any Alternative Financing is available. To the extent reasonably requested by Purchaser (including prior real estate title commitmentsobtains Alternative Financing or amends, surveysreplaces, environmental reports and similar information)supplements, (ii) assist in the preparation terminates, modifies or waives any of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of in each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation case pursuant to this Section 7.05(b) shall delay the Applicable Closing5.7 and without any Prohibited Modification, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related references to the “Financing, or ” and “Commitment Letter” (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them other like terms in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance deemed to refer to such Alternative Financing, the commitments thereunder and the agreements with the Confidentiality Agreementrespect thereto, except for disclosure to potential investors as required in connection with or the Financing subject to customary confidentially protectionsas so amended, replaced, supplemented, terminated, modified or waived.
Appears in 1 contract
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing CommitmentsFinder's Fee". Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments It is understood that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event Consultant ------------------------ introduces Company, or its nominees, to a lender or equity purchaser, not already having a preexisting relationship with the Company, with whom Company, or its nominees, ultimately finances or causes the completion of such financing, Company agrees to compensate Consultant for such services with a breach "finder's fee" in the amount of 2.5% of total gross funding provided by such lender or equity purchaser, such fee to be payable in cash. This will be in addition to any fees payable by Company to any other failure intermediary, if any, which shall be per separate agreements negotiated between Company and such other intermediary. It is also understood that in the event Consultant introduces Company, or its nominees, to fund an acquisition candidate, either directly or indirectly through another intermediary, not already having a preexisting relationship with the Company, with whom Company, or its nominees, ultimately acquires or causes the completion of such acquisition, Company agrees to compensate Consultant for such services with a "finder's fee" in the amount of 2% of total gross consideration provided by such acquisition, such fee to be payable in cash. This will be in addition to any fees payable by Company to any other intermediary, if any, which shall be per separate agreements negotiated between Company and such other intermediary. It is specifically understood that Consultant is not nor does it hold itself out be a Lender Broker/Dealer, but is rather merely a "Finder" in reference to the Company procuring financing sources and acquisition candidates.
5.1 It is further understood that impedes or delays the Applicable ClosingCompany, and (vi) otherwise cause the Lenders not Consultant, is responsible to fund perform any and all due diligence on the Applicable Closing Date the Financing (such lender, equity purchaser or a portion thereof) required acquisition candidate introduced to consummate the transactions it by Consultant under this Agreement, prior to Company receiving funds or closing on any acquisition.
5.2 Company agrees that said compensation to Consultant shall be consummated paid in full at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); providedtime said financing or acquisition is closed. Moreover, that Purchaser shall not said compensation, will be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating a condition precedent to the Financing. Without limiting the generality closing of the foregoingsuch financing or acquisition and Company shall execute any and all documents necessary to effect said compensation.
5.3 As further consideration to Consultant, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by PurchaserCompany, or its nominees, agrees to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person pay with respect to any (x) actual financing or potential breach, default, termination acquisition candidate provided directly or repudiation indirectly to the Company by any party to any Financing Commitment lender or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated equity purchaser covered by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and 5. during the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation period of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Consulting Agreement (Data Race Inc)
Financing. (a) Purchaser Buyer shall use its reasonable best efforts to take, take or cause its Affiliates to be takentake all actions, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain obtain, on or prior to the Closing Date, the Debt Financing contemplated by the Debt Commitment Letter in an aggregate amount at least equal to the Financing as promptly as reasonably practicable on the terms Amount. In furtherance and subject only to the conditions contained not in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality limitation of the foregoing, Purchaser Buyer shall use reasonable best efforts take, and/or cause its Affiliates to (i) maintain in effect the Financing Commitmentstake, (ii) satisfy on a timely basis (all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the waiver of) all conditions applicable to Purchaser in proceeds of the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions contemplated described in the Debt Commitment Letter as promptly as possible after the date of this Agreement but in any event prior to the Closing Date, including by (i) maintaining in full force and effect the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing Commitments(the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter (including, to the extent exercised in accordance with the terms of such fee letter, the “flex” provisions contained in the related fee letter) and without effecting any Prohibited Modification, (iii) satisfying or obtaining a waiver of, on a timely basis (and in any event prior to the Closing Date), all conditions in the Debt Commitment Letter and the Definitive Agreements and complying with their respective obligations thereunder and (iv) consummate promptly and diligently enforcing their respective rights under the
(b) Buyer shall not, without the Financing prior written consent of the Company (i) permit or a portion thereofconsent or agree to any amendment, supplement or other modification of, or waive any of its rights or remedies or any other party’s obligations under, the Debt Commitment Letter or, to the extent entered into prior to the Closing Date, any Definitive Agreement, in each case, if such amendment, supplement, other modification or waiver would or would reasonably be expected to (A) at impose new or additional conditions or other contingencies or otherwise expand, amend or modify any of the conditions or other contingencies that may materially adversely affect, or materially delay, the receipt on or prior to the Applicable ClosingClosing Date of all or any portion of the Debt Financing, (vB) reduce any portion of the Debt Financing to an amount less than the Financing Amount, (C) adversely affect the ability of Buyer to (I) perform its obligations thereunder on a timely basis (and in any event on or prior to the Closing Date) or (II) enforce its rights under the Debt Commitment Letter or the Definitive Agreements as so amended, modified or waived, relative to the ability of Buyer to enforce its rights under the Debt Commitment Letter as in effect as of the date of this Agreement, (D) make the timely funding of the Debt Financing Commitments or satisfaction of the conditions to obtaining the Debt Financing, in each case on or prior to the event of a breach or other failure Closing Date, less likely to fund by a Lender that impedes or delays the Applicable Closingoccur, and (viE) otherwise cause prevent, impede or delay the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request availability of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Debt Financing necessary to fund the Financing Amount, the timing of the Closing or the consummation of the Transactions and the other transactions contemplated by this Agreement and the other Transaction Agreements, (F) amend or modify the date on which the commitments of the counterparties under the Debt Commitment Letter shall expire or terminate in any manner that results in such date of expiration or termination becoming a date earlier than the date specified in the Debt Commitment Letter (as in effect on the termsdate hereof), or (G) permit or effect the assignment or release of any commitments or obligations of any Debt Financing Source under the Debt Commitment Letter (except to the extent such assignment or release is contingent upon the actual funding in full of such obligations under the manner or from the sources contemplated by the Financing Commitments Closing Date or the definitive documents related to Debt Commitment Letter is terminated or replaced in compliance with the Financing. As soon following proviso) (the foregoing clauses (A) through (G), collectively, the “Prohibited Modifications”) or (ii) terminate or replace any Debt Commitment Letter or Definitive Agreement if doing so would constitute or effect a Prohibited Modification; provided, however, that, for the avoidance of doubt, Buyer may amend, supplement replace and/or modify the Debt Commitment Letter (A) as reasonably practicable, but in any event within five (5) Business Days after expressly contemplated therein as of the date of this Agreement solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto, which Persons had not executed the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by Debt Commitment Letter as of the Sellers relating to any circumstance referred to in clause (A), date of this Agreement or (B) if Buyer has obtained one or more New Commitment Letters (Cas defined below) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace pay the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the FinancingAmount, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that arebut, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement each case of the Financing as may be reasonably requested by Purchaser foregoing clauses (A) and that is customary in connection with Purchaser’s efforts to obtain the Financing(B), including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, only to the extent reasonably requested by Purchaser doing so would not constitute or effect a Prohibited Modification. Buyer shall (including prior real estate title commitmentsx) notify the Company of its intention to make any amendment, surveysreplacement, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) atsupplement or other modification of, or conditional upon, waive any of its rights or remedies or any other parties under the Applicable Closing customary certificates Debt Commitment Letter (including a certificate of or the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.entered into
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Celsius Holdings, Inc.)
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, each of Buyer and MergerSub shall use use, and shall cause ▇▇▇▇▇, Inc. to 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, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained flex provisions) described in the Financing Commitments. Purchaser Commitment Letter, and shall not not, without the prior written consent of the Company, permit any amendment amendment, modification or modification termination to be made to, or any waiver of any provision or remedy under, the Financing Commitments Commitment Letter, in a manner that would reasonably be expected to (w) change, expand or impose additional conditions precedent to the funding of the Debt Financing from those set forth in the Financing Commitment Letter on the date of this Agreement, (x) reduce the aggregate cash amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing (except for as set forth in any such amendments“flex” provisions existing on the date of this Agreement), modifications (y) delay or waivers which, individually prevent or make less likely the funding of the Debt Financing contemplated by the Financing Commitment Letter (or satisfaction of the conditions precedent to the Debt Financing) on the Closing Date in any material respect or (z) extend or permit the extension of the Compliance Period (as defined in the aggregateFinancing Commitment Letter on the date of this Agreement) (provided that, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersCompany, which consent shall not be unreasonably withheldBuyer or ▇▇▇▇▇, conditioned Inc. may amend the Financing Commitment Letter (A) to favorably modify pricing terms or delayed. Without limiting the generality add additional lenders, arrangers, bookrunners and agents or (B) to implement or exercise any of the foregoing“market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Financing Commitment Letter). Buyer shall promptly deliver to the Company copies of any such amendment or modification. For purposes of this Section 6.07, Purchaser references to “Debt Financing” shall use reasonable best efforts include the Debt Financing contemplated by the Financing Commitment Letter as permitted to be amended or modified by this Section 6.07(a) and references to “Financing Commitment Letter” shall include such documents as permitted to be amended or modified by this Section 6.07(a).
(b) Each of Buyer and MergerSub shall, and shall cause ▇▇▇▇▇, Inc. to (i) use its reasonable best efforts (A) to maintain in effect the Financing CommitmentsCommitment Letter, (iiB) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on Commitment Letter consistent with the terms and subject only to conditions (including the conditions contemplated by flex provisions) contained in the Financing CommitmentsCommitment Letter (or on terms no less favorable (taken as a whole) to ▇▇▇▇▇, Inc., Buyer and MergerSub than the terms and conditions (including flex provisions) in the Financing Commitment Letter), (ivC) to satisfy (or obtain the waiver of) on a timely basis all conditions precedent to funding in the Financing Commitment Letter and such definitive agreements thereto that are within Buyer’s or ▇▇▇▇▇, Inc.’s control so as to consummate the Debt Financing (or a portion thereof) at or prior to the Applicable Closing, Effective Time and (vD) to enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, Commitment Letter and such definitive agreements thereto and (viii) otherwise cause the Lenders to fund on the Applicable Closing Date comply with their obligations under the Financing (or Commitment Letter and the definitive agreements related to the Debt Financing. Buyer shall keep the Company reasonably informed on a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms current basis and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its and ▇▇▇▇▇, Inc.’s efforts to arrange the Debt Financing and any material developments relating provide to the Company copies of the material definitive agreements for the Debt Financing. Without limiting the generality of the foregoing, Purchaser Buyer shall give the Sellers Company prompt notice: notice (Ax) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any of the Financing Commitment Letter or definitive document agreements related to the Financing; Debt Financing of which Buyer or ▇▇▇▇▇, Inc. becomes aware, (By) of the receipt of (I) any written notice or (II) other written communication communication, in each case from any Person Financing Source with respect to any (x) actual or potential material breach, default, termination or repudiation by any party to any of the Financing Commitment Letter or any definitive document agreements related to the Debt Financing of any provisions of any the Financing Commitment Letter or any definitive document agreements related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Debt Financing; , and (Cz) if at any time for any reason Purchaser Buyer or ▇▇▇▇▇, Inc. believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Debt Financing on the termsterms and conditions, in the manner or from the sources contemplated by any of the Financing Commitments Commitment Letter or the definitive documents agreements related to the Debt Financing. As soon as reasonably practicablepracticable after any notice by Buyer to the Company of the type described in the immediately preceding sentence, but in any event within five (5) two Business Days after of the date the Sellers deliver Company delivers to Purchaser Buyer a written request, Purchaser Buyer shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (Ax), (By) or (Cz) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, ; provided that Buyer need not provide any action that is reasonably likely to information the disclosure of which could result in the failure loss of any conditions contained in the Financing Commitments attorney-client privilege or any definitive agreement related thereto. that is requested for purposes of litigation.
(c) If all or any portion of the Debt Financing becomes unavailable on for any reason, and such portion is reasonably required to pay the terms Aggregate Closing Merger Consideration and conditions pay all fees, expenses and other amounts contemplated in to be paid by Buyer, MergerSub and the Financing CommitmentsSurviving Corporation pursuant to this Agreement, Purchaser Buyer and MergerSub shall use its use, and shall cause ▇▇▇▇▇, Inc. to use, their reasonable best efforts to arrange and obtain in replacement thereof alternative debt and/or equity financing as promptly as practicable (“Alternative Financing”) from alternative sources in an amount sufficient sufficient, when taken together with available cash of Buyer and any then-available Debt Financing pursuant to replace the Financing as promptly as practicable and without Commitment Letter to consummate the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the FinancingMerger, and Purchaser’s obligations under this Section 7.05(a) shall apply to with such alternative financing and the agreements related thereto as if such alternative financing is the Alternative Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall having terms not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect (taken as a whole) to Purchaser ▇▇▇▇▇, Inc., Buyer and MergerSub than those the terms (taken as a whole) set forth in the Financing CommitmentsCommitment Letter as promptly as reasonably practicable following the occurrence of such event. Buyer shall deliver to the Company true and complete copies of all commitment letters and fee letters (as redacted in a customary manner to remove the fee amounts, pricing caps, the rates and other economic terms included in the “market flex” (none of which could reasonably be expected to adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Debt Financing)) pursuant to which any such alternative source shall have committed to provide any portion of the Alternative Financing. Notwithstanding anything in this Section 6.07 or elsewhere in this Agreement to the contrary, in no event shall the “reasonable best efforts” of ▇▇▇▇▇, Inc., Buyer and MergerSub be deemed or construed to require any such Person to, and no such Person shall be required to, pay any financing fees in the aggregate in excess of those contemplated by the Financing Commitment Letter or agree to economic terms of the financing that are (other than as specified in the preceding sentence) materially less favorable than those contemplated by the Financing Commitment Letter.
(bd) Prior to If the Applicable ClosingFinancing Commitment Letter is replaced, amended, supplemented or modified, including as a result of obtaining Alternative Financing, or if ▇▇▇▇▇, Inc., Buyer or MergerSub substitute other debt financing for all or any portion of the Sellers Debt Financing in accordance with this Section 6.07, each of Buyer and MergerSub shall use their commercially reasonable efforts to providecomply, and shall use their commercially reasonable efforts cause ▇▇▇▇▇, Inc. to cause their Affiliates and their respective officerscomply, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financingits obligations under this Agreement, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the businessthis Section 6.07, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters)the Financing Commitment Letter as so replaced, accounting comfort letters (including consents of accountants for use of their reports in any materials relating amended, supplemented or modified to the Financing) or other documents same extent that ▇▇▇▇▇, Inc., Buyer and instruments relating MergerSub were obligated to guarantees and other matters ancillary comply prior to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect date the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; providedCommitment Letter was so replaced, howeveramended, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, supplemented or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsmodified.
Appears in 1 contract
Sources: Merger Agreement (Greif Inc)
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall, and shall use its reasonable best efforts to takecause each of the Equity Providers to, take or cause to be taken, taken all actions and to do, do or cause to be done, done all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable Equity Financing, and use its reasonable best efforts to obtain the Debt Financing, in each case, on the terms terms, and subject only to the conditions contained conditions, set forth in the Financing CommitmentsLetters. Purchaser Parent and Merger Sub shall not permit any amendment be permitted to amend or modification to be made tomodify, or any waiver of waive any provision under, or remedy undersupplement or replace in whole or in part (including through co-investments or by financing from one or more additional parties), the Financing Commitments (except for Letters or the Rollover Letter; provided, that Parent and Merger Sub shall not effect any such amendmentsamendment, modifications modification, waiver, supplement or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) replacement without the Company’s prior written consent of the Sellers, which consent shall (not to be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing) if such amendment, Purchaser shall use reasonable best efforts to modification, waiver, supplement or replacement:
(i1) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on Letters, reduces (or could have the terms and subject only effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount);
(2) with respect to the conditions contemplated by Financing Letters, has the Financing Commitmentseffect of expanding, (iv) consummate amending or modifying the Marketing Period in a manner that would reasonably be expected to delay or prevent the funding of the Financing (or a portion thereof) at or prior satisfaction of the conditions to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: ;
(A3) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any the Rollover Letter, (x) actual or potential breachincreases the number of shares of Company Common Stock to be contributed thereby, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related provides for a consideration per share of Company Common Stock contributed that exceeds the consideration per share of Company Common Stock being contributed pursuant to the Financing; and (C) if for any reason Purchaser believes Rollover Letter as in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to effect on the Financing date hereof or (yz) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated prohibited by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five Section 5.03;
(54) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any imposes new or additional conditions and without or otherwise expands, amends or modifies any adverse amendment to existing of the conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and or otherwise expands, amends or modifies any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement other provision of the Financing as may Letters, in each case, in a manner that would reasonably be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts expected to obtain delay or prevent or make materially less likely the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion funding of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate satisfaction of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating conditions to the Financing) on the Closing Date; or
(5) otherwise adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against other documents and instruments relating to guarantees and other matters ancillary parties to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions Letters or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging any definitive agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede respect thereto or otherwise adversely affect to timely consummate the Financing and (viii) assist Purchaser and the Lenders to benefit from Merger, in the existing lending relationships case of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) through (5) above, in any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsmaterial respect.
Appears in 1 contract
Financing. (a) Purchaser Parent 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, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Debt Financing Commitments. Purchaser Commitments and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, under the Financing Commitments if such amendment, modification or waiver would (except for x) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fee) unless the Equity Financing is increased by a corresponding amount, or (y) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that would reasonably be expected to (I) delay (taking into account the Marketing Period) or prevent the Closing, (II) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (III) adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Parent to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. Subject to the limitations set forth in this Section 6.14 and provided that the representations set forth in Section 5.2(e) shall be true and correct giving effect to such amendmentsreplacement or amendment, modifications Parent and Merger Sub may replace or waivers whichamend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date hereof, if the addition of such additional parties, individually or in the aggregate, would not be reasonably expected likely to prevent(I) delay (taking into account the Marketing Period) or prevent the Closing, delay or impair (II) make the availability funding of the Debt Financing under (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (III) adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Parent to consummate the transactions contemplated hereby or the likelihood of consummation of the Transactionstransactions contemplated hereby. For purposes of this Section 6.14, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be amended or modified by this Section 6.14(a) without the prior written consent of the Sellers, which consent and references to “Financing Commitments” or “Debt Financing Commitments” shall not include such documents as permitted to be unreasonably withheld, conditioned amended or delayedmodified by this Section 6.14(a). Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall use their reasonable best efforts to (i) maintain in full force and effect the Debt Financing CommitmentsCommitments in accordance with their terms, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Purchaser Parent and Merger Sub in the Debt Financing Commitments that are within its control (including by consummating the financing pursuant to the terms of the Equity Financing Commitments) and otherwise comply with its covenants and other obligations thereunder, in each case, that are within Parent’s or any of its Affiliates’ control, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing thereto on the terms and subject only to conditions (including the conditions flex provisions) contemplated by the Debt Financing CommitmentsCommitments or on such terms acceptable to Parent and the Financing Sources, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Debt Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise subject to the satisfaction or waiver of the conditions set forth in the Debt Financing Commitments, cause the Lenders lenders and other Persons providing Financing to fund on the Applicable Closing Date the Financing contemplated to be funded on the Closing Date by the Debt Financing Commitments (or a portion thereof) such lesser amount as may be required to consummate the Merger and the other transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financingcontemplated hereby); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall give the Sellers Company prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could would reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the FinancingFinancing of which Parent or its Affiliates becomes aware; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of or any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment Commitments or any definitive document related to the Financing; and (C) if for any reason Purchaser Parent or Merger Sub believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, terms or in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing; provided, that in no event will Parent or Merger Sub be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Parent and Merger Sub shall have used their reasonable best efforts to disclose such information in a way that would not waive such privilege. As soon as reasonably practicable, but in any event within five (5) Business Days three business days after the date the Sellers deliver to Purchaser Company delivers Parent or Merger Sub a written request, Purchaser Parent and Merger Sub shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Debt Financing becomes unavailable on substantially the terms and conditions (including the flex conditions) contemplated in the Debt Financing Commitments, Purchaser Parent shall use its reasonable best efforts to arrange and obtain alternative financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to on terms and conditions with respect to any alternative financing that are, in the aggregate, materially are no less favorable in to Parent (taking into account any material respect to Purchaser flex provisions) than those set forth in the Debt Financing Commitments.
(b) Prior Commitment, in an amount sufficient to consummate the Applicable Closing, transactions contemplated by this Agreement as promptly as practicable following the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with occurrence of such event but no later than the arrangement last business day of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsMarketing Period.
Appears in 1 contract
Sources: Merger Agreement (Pharmaceutical Product Development Inc)
Financing. (a) Purchaser Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain cause the Financing as promptly as reasonably practicable on to, until the earlier of Closing or the valid termination of this Agreement, be available to Buyer upon the terms and subject only conditions set forth in the Commitment Letter, including (i) taking actions to enforce its rights against the lenders and other persons providing the Financing to fund such Financing and (ii) using its commercially reasonable efforts to (A) maintain in effect the Commitment Letter, (B) satisfy on a timely basis all conditions applicable to Buyer obtaining the Financing, and (C) enter into definitive agreements with respect thereto on terms and conditions contained in the Financing CommitmentsCommitment Letter. Purchaser Buyer shall not agree to or permit any amendment amendment, supplement or other modification to be made toof, or waive any waiver of any provision or remedy its rights under, the Financing Commitments (except for Commitment Letter or any definitive agreements related to the Financing, if such amendmentsamendment, modifications supplement, modification or waivers which, individually or in the aggregate, waiver would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required hinder Buyer’s ability to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that arecontemplated hereby, in the aggregateeach case, materially less favorable without Sellers’ prior written consent. Buyer shall promptly furnish to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request Sellers a complete copy of the Sellersany amendment, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating supplement or other modification to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware Commitment Letter and a full description of any material breach or default waiver of Buyer’s rights under the Commitment Letter, as applicable.
(or any b) In the event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, becomes unavailable in the manner or from the sources contemplated in the Commitment Letter, (i) Buyer shall promptly notify Sellers, and (ii) Buyer shall use its commercially reasonable efforts to obtain alternative financing from alternative sources, on terms, taken as whole, that are not materially less beneficial to Buyer than those contemplated by the Commitment Letter, would not involve any material conditions to funding the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions are not contained in the Financing Commitments Commitment Letter and would not reasonably be expected to prevent, materially impede or any definitive agreement related thereto. If any portion materially delay the consummation of the Financing becomes unavailable on the terms and conditions transactions contemplated in the Financing Commitmentshereby, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from following the occurrence of such event. In the event that alternative sources in an amount sufficient financing shall be secured pursuant to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a7.18(b), Buyer shall comply with the covenants in Section 7.18(a) shall apply with respect to such alternative financing and shall promptly furnish to Sellers the agreements related commitment letter and term sheet, including all exhibits, schedules or amendments thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided(or similar documents), that Purchaser shall not be required to agree to terms and conditions with respect to any such alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsfinancing.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Black Hills Corp /Sd/)
Financing. (a) Purchaser shall use its reasonable best efforts Subject to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser of this Agreement, each of Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments Letters or the consummation of the Transactions) without the prior written consent of the SellersRollover Letter, which consent shall not if such amendment, modification or waiver would, or would reasonably be unreasonably withheldexpected to, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (iiA) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on Letters, reduce the terms and subject only aggregate amount of the Financing (unless the Rollover Investment is increased by a corresponding amount) or (B) with respect to the Rollover Letter, reduce the amount of Shares to be contributed (unless the Financing is increased by a corresponding amount), or (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Financing or the contribution contemplated by the Rollover Letter or other terms in a manner that would reasonably be expected to (x) materially delay or prevent the Closing Date or (y) make the timely funding of the Financing or the contribution contemplated by the Rollover Letter, or satisfaction of the conditions to obtaining the Financing or the contribution contemplated by the Rollover Letter, materially less likely to occur. Any reference in this Agreement to (i) “Financing” shall include the financing contemplated by the Financing Commitments, (iv) consummate the Financing (Letters as amended or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments modified in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, compliance with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information)5.12, (ii) assist the “Rollover Investment” shall include the financing contemplated by the Rollover Letter as amended or modified in the preparation of bank information memoranda compliance with this Section 5.12 and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at“Financing Letters”, “Rollover Letter” or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers “Debt Commitment Letter” shall include such documents as amended or modified in compliance with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off5.12(a). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser Parent shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or consummate and obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by set forth in the Financing CommitmentsDocuments, including using reasonable best efforts to (i) maintain in effect and comply with the Financing Documents, (ivii) satisfy (and cause its Affiliates to satisfy) on a timely basis all conditions applicable to Parent and its Affiliates in the Financing Documents (or, if necessary or deemed advisable by Parent, seek consents or waivers of conditions applicable to Parent or its applicable Subsidiary contained in such Financing Document), (iii) consummate the Debt Financing (or a portion thereof) at or prior to the Applicable Closingtime the Closing is required to occur pursuant to Section 1.3, including using reasonable best efforts to cause the lenders and other Persons party to the Debt Financing Documents to fund the Debt Financing, (iv) conduct the Share Issue in accordance with the Parent Announcements (or any amendment or supplement thereto) and otherwise consummate the Equity Financing, including to cause the joint bookrunners and lead managers to procure subscribers for, and if such subscribers cannot be procured or default in their subscription, subscribe as principal, for any ordinary shares in the capital of Parent not properly subscribed and paid for in connection with the Share Issue in accordance with the terms of the Placing Agreement, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable ClosingDocuments, and (vi) comply with its covenants and other obligations under the Financing Documents. Parent shall not, without the prior written consent of the Company, (A) terminate or agree or otherwise cause assent to any termination of (or fail to exercise any right available to it under the Lenders Financing Documents to prevent the termination of), (B) agree to or permit any amendment, supplement or modification to be made to, or (C) grant any waiver of any provision under, in each case, the Financing Documents if such termination, amendment, supplement, modification or waiver would (x) reduce (or would have the effect of reducing) the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount other than as effected pursuant to any market flex provisions expressly set forth in the Fee Letters) if such reduction would reduce the aggregate amount of the Financing (together with Parent’s existing cash resources) below the amount needed to fund the Payment Obligations on the Applicable Closing Date Date, (y) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing (or otherwise expand, amend or modify any other provision of the Financing Documents), in a portion thereof) required manner that could reasonably be expected to consummate delay or prevent or make less likely to occur the transactions funding of the Financing (or satisfaction of the conditions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required with respect to agree the Equity Financing, promptly after the date of this Agreement and, with respect to terms and conditions that arethe Debt Financing, in on the aggregate, materially less favorable Closing Date or (z) adversely impact the ability of Parent (or any Affiliate thereof) to Purchaser than those set forth in enforce its rights against other parties to the Financing CommitmentsDocuments. Upon Parent shall deliver to the Company true and complete copies of any amendment, modification, supplement, consent or waiver to or under any Financing Document as soon as reasonably practicable following the execution thereof.
(b) Parent shall keep the Company informed on a current basis and in reasonable detail, upon reasonable request of by the SellersCompany, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting Parent shall inform the generality Company promptly of the foregoing, Purchaser shall give the Sellers prompt notice: (Ai) upon becoming aware of any material actual or alleged breach or event of default (or any event event, development, circumstance or circumstance change that, with or without notice, lapse of time or both, could would reasonably be expected to give rise to any material breach or event of default) ), termination, cancellation or repudiation by Purchaser, or to the Knowledge of Purchaser, any other party to any of the Financing Commitment or definitive document related to the Financing; Documents of which Parent becomes aware, (Bii) of the receipt of any written notice or other written communication from any Person Financing Source with respect to any (xA) actual or potential alleged breach, default, termination termination, cancellation or repudiation by any party to any Financing Commitment or any definitive document related to of the Financing Documents of any provisions of any Financing Commitment or any definitive document related to the Financing Documents or (yB) material dispute or disagreement between or among any parties to any of the Financing Commitment or any definitive document related Documents with respect to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute conditionality or disagreement between or among any parties to any Financing Commitment or any definitive document related to amount of the Financing or the obligation to fund the Financing or the amount of the Financing to be funded, with respect to the Equity Financing, promptly after the date of this Agreement and, with respect to the Debt Financing, at the Closing, and (yiii) it is the occurrence of an event, development, circumstance or change that could reasonably likely be expected to adversely impact the ability of Parent or its Subsidiaries to, or any other reason Parent believes that it will not be able to to, obtain all or any portion of the Financing contemplated by the Financing Documents on the termsterms and conditions, in the manner or and from the sources Financing Sources contemplated by any of the Financing Commitments or the definitive documents related to the FinancingDocuments. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser Parent shall provide any additional information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser ; provided that Parent shall refrain from taking, directly not be required to provide any such additional information to the extent disclosure would be prohibited under Applicable Law or indirectly, any action that is such disclosure could reasonably likely be expected to result in a waiver of attorney-client privilege (it being understood that (x) this proviso does not limit Parent’s obligations under the failure immediately preceding sentence and (y) Parent shall use commercially reasonable efforts to provide such information in a manner that does not result in a loss of any conditions contained in the Financing Commitments or any definitive agreement related theretoattorney-client privilege). If any portion of the Financing becomes unavailable on the terms and conditions (including any applicable market flex provisions) contemplated by the Financing Documents, and such portion is required to fund the Payment Obligations, Parent shall promptly notify the Company in writing and Parent shall use reasonable best efforts to, as promptly as practicable after such portion of the Financing becomes so unavailable, arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative financing sources in an amount sufficient to fund the Payment Obligations on the Closing Date and with terms and conditions (including market flex provisions) not materially less favorable, taken as a whole, to Parent (or its Affiliates) than the terms and conditions set forth in the Financing CommitmentsDocuments. Parent shall deliver to the Company true and complete copies of all contracts, Purchaser agreements or other arrangements, including Fee Letters (which contracts, agreements or other arrangements may be redacted with respect to fee amounts, original issue discount, “market flex” provisions and other economic or commercially sensitive terms; provided, that such redactions do not relate to any terms that could adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount (other than with respect to original issue discount) of the Debt Financing or other funding being made available by such Debt Financing Source), pursuant to which any such alternative Financing source shall have committed to provide any portion of the Financing. For purposes of this Agreement, (I) references to the “Financing” shall include the financing contemplated by the Financing Documents as permitted to be amended, modified, supplemented or replaced in accordance with this Section 6.9, (II) references to the “Financing Documents,” the “Debt Financing Documents”, the “Facility Agreement”, and the “Placing Agreement” shall include such documents as permitted to be amended, modified, supplemented or replaced by this Section 6.9, (III) references to “Debt Financing” shall include the debt financing contemplated by the Debt Financing Documents as permitted to be amended, modified, supplemented or replaced in accordance with this Section 6.9, and (IV) references to “Equity Financing” shall include the underwriting of the Share Issue contemplated by the Placing Agreement as permitted to be amended, modified, supplemented or replaced in accordance with this Section 6.9.
(c) Prior to the Closing Date, the Company shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and to cause its Subsidiaries to provide (and shall use their its commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents its Representatives to provide), to Parent, in each case at PurchaserParent’s sole cost and expense, all such reasonable cooperation as is customary and reasonably requested by Parent in connection with the arrangement Financing, including (i) upon reasonable request, the participation of the Financing as may be reasonably requested by Purchaser senior officers in a reasonable number of meetings, presentations, conference calls, drafting sessions, due diligence sessions and that is customary sessions with rating agencies in connection with Purchaser’s the Financing (in each case, at reasonably convenient times and locations) and (ii) using its reasonable best efforts to obtain make available to Parent, its Subsidiaries, their advisors and their Debt Financing Sources such historical financial information and other information as Parent shall reasonably request of a type and form customarily included or required in connection with (x) marketing materials for a senior secured bank financing or (y) either a financing comparable to the Share Issue conducted in accordance with Applicable Law, including using its reasonable best efforts (except with respect to clause (v) below, in which case the Company will use its commercially reasonable efforts) to:
(i) provide any financial information and data derived from the historical books and records of the Company and its Subsidiaries that is required to permit Parent, its Subsidiaries and their advisors to prepare the pro forma financial statements or other projections or forecasts required for the Parent Announcements (or any amendment or supplement thereto) (provided that Parent shall be responsible for the preparation of any pro forma financial statements and pro forma adjustments giving effect to the Merger and the Share Issue for use in connection with the offering of the Financing; provided, further, that in no event shall the Company be required to provide (A) any information regarding any post-Closing financial statements, or pro forma financial statements including post-Closing financial statements or adjustments, or any post-Closing pro forma adjustments desired to be incorporated into any information used in connection with the Financing, including any synergies or cost savings, projections, ownership or an as-adjusted capitalization table or any financial statements or information not available to the Company or not prepared in the ordinary course of its financial reporting practice or (iB) provide readily-available financial any description of all or any component of the Financing, including any such description to be included in liquidity and capital resources disclosure, or other information relating customarily provided by the Financing Sources or their counsel);
(ii) correct as promptly as reasonably practicable any information provided by or on behalf of it expressly for use in the Parent Announcements (or any amendment or supplement thereto), or which relates to the Sellers Company and is set forth in a disclosure the text of which is specifically approved in writing by the Company (including via email) expressly for use in the Parent Announcements (or any amendment or supplement thereto), in each case if and to the Lenders extent that, to the Company’s Knowledge, such information shall have become false or misleading in any material respect (including information or includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading) or as otherwise required by Applicable Law, and Parent agrees to cause a supplemental announcement to the applicable Parent Announcement to be used published or posted (as applicable) to correct such false or misleading statement (or such untrue statement or omission), in each case solely as and to the extent required by all Applicable Laws;
(iii) assist with the preparation of an informational package regarding the businessmaterials for rating agency presentations, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar marketing documents for a syndicated bank financing; provided, however, that no bank information memoranda or other marketing materials, private placement memoranda or prospectuses in relation to debt or equity securities (including historical the Parent Announcements) shall in any event be issued by the Company or any of its Subsidiaries and pro forma financial statements and information) all such materials prepared by or on behalf of or utilized by Parent, or any of their Financing Sources, in connection with the Financing shall include a disclaimer to the effect that none of the Company, its Subsidiaries or their respective Representatives have any liability for the Financinguse or misuse of the contents of such materials by the recipients thereof;
(iv) cooperate in any process required for due diligence and verification in compliance with applicable requirements or customary practice;
(v) obtain its accountants’ participation in the due diligence process, (iii) obtain from its accountants customary accountants’ comfort letters reasonably requested by Parent, and cause the Sellers and their Affiliates Company’s accountants to execute and deliver (and use commercially reasonable efforts consent to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports (and provide customary representation letters and cooperation to such accountants in connection with such comfort letters and auditor consents) in the Share Issue and the related Parent Announcements (or any materials relating to amendment or supplement thereto);
(vi) facilitate the Financing) or other entrance into definitive documents and instruments relating to guarantees guarantees, the pledge of collateral and other matters ancillary to the Financing as may and the Parent Announcements, including any offering of Parent ordinary shares in the Share Issue; provided, that any obligations of the Company or any of its Subsidiaries contained in all such agreements and documents shall be reasonably subject to the occurrence of the Closing and effective no earlier than the Closing;
(vii) if requested by PurchaserParent, (iv) assist in the preparation of, entering into and, upon reasonable prior notice obtaining a customary debt pay-off letter and customary lien terminations or releases with respect to the extent related Columbus Credit Facility and all security interests and guarantees granted in connection therewith (and delivering to Parent a draft of such pay-off letter and such lien terminations or releases at least five Business Days in advance of the Closing Date); and
(viii) furnish to Parent and its Debt Financing Sources as promptly as reasonably practicable, and in any event no later than 10 Business Days prior to the participation in meetingsClosing, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or all documentation and other agreementsinformation required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have without limitation the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligenceUSA PATRIOT Act, to the extent customary and reasonable, requested in writing by Parent at least 15 Business Days prior to the Closing.
(viid) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no Such requested cooperation pursuant to this Section 7.05(b) shall delay not, in the Applicable ClosingCompany’s reasonable judgment, or unreasonably interfere with the ongoing business or operations of Sellers the Company or any of its Subsidiaries (and in no event shall the Sellers Company be obligated to provide, or to cause its Subsidiaries or Representatives to provide, any such requested cooperation if, in the Company’s reasonable judgment, such cooperation would so interfere with such business or operations or would otherwise violate any legal requirement or contractual obligation of the Company (including providing information that the Company reasonably deems to be competitively sensitive information or the provision of which could reasonably be expected to be materially damaging to the Company’s or its Subsidiaries’ relationships with their customers or employees)). In no event shall not (A) the Company or any of its Subsidiaries be required to bear any cost or expense, pay any commitment commitment, underwriting or other similar fee, (B) have enter into any Liability under any credit definitive agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced other liability or simultaneously reimbursed by Purchaser (without set-off). Purchaser shallobligation, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against make any and all Losses suffered other payment or incurred by them in connection with (1) agree to provide any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required indemnity in connection with the Financing subject or any of the foregoing prior to customary confidentially protections.the Effective Time. In addition, nothing in this Section 6.9 shall requi
Appears in 1 contract
Financing. (a) Purchaser Parent and Merger Sub acknowledge and agree that the Company and its Affiliates have no responsibility for any financing that Parent or Merger Sub may raise in connection with the Merger. Any offering materials and other related documents prepared by or on behalf of or utilized by Parent or its Affiliates and financing sources, in connection with Parent and Merger Sub's financing activities in connection with the Merger, that include any information provided by the Company or any of its Affiliates, including any offering memorandum, banker's book or similar document used, or any other written offering materials used (collectively, "Offering Materials"), in connection with any debt or securities offering or other such Parent and Merger Sub financing shall include a conspicuous disclaimer to the effect that neither the Company nor any of its Affiliates has any responsibility for the content of such document and disclaims all responsibility therefor and shall further include a disclaimer with respect to the Company and its Affiliates in any oral disclosure with respect to such financing.
(b) Parent and Merger Sub shall use its reasonable their respective best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing and the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive financing agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, so that such agreements are in effect as promptly as practicable but in any event no later than the Effective Time and (iviii) consummate the Financing (or a portion thereof) at or prior to the Applicable Effective Time. Parent and Merger Sub shall provide to the Company copies of all final documents relating to the Financing and shall keep the Company fully informed of material developments in respect of the financing process relating thereto. Prior to the Closing, (v) enforce its rights under Parent and Merger Sub shall not agree to, or permit, any amendment or modification of, or waiver under, the Financing Commitments in the event of a breach or other failure final documentation relating to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (i) in a manner that would (A) reduce the aggregate amount of available Financing or a portion thereof(B) required delay or prevent the Closing or (ii) which is otherwise adverse to consummate the transactions Company in any material respect, without the prior written consent of the Company (such consent not to be consummated at unreasonably withheld). In the Applicable period between the date hereof and the Closing (including taking enforcement action Date, upon request of Parent and Merger Sub, the Company shall, and shall use reasonable best efforts to cause the Lenders to provide Company Subsidiaries, and its and their Affiliates and Representatives to, reasonably cooperate with Parent and Merger Sub in connection with the Financing, including without limitation, subject to Section 6.14(a), (i) preparation of any required financial statements relating to the Company and the Company Subsidiaries and any required pro forma financial information; provided(ii) reasonable participation in meetings and road shows, that Purchaser if any; (iii) the provision of information relating to the Financing reasonably requested by Parent and Merger Sub; and (iv) reasonable assistance in the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent. Parent and Merger Sub shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses incurred by the Company or its Affiliates or Representatives in connection with such cooperation. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to agree to terms execute and conditions that aredeliver any commitment letters, underwriting or placement agreements, pledge and security documents, or other definitive financing documents in the aggregate, materially less favorable to Purchaser than those set forth in connection with the Financing Commitments. Upon prior to the reasonable request Closing.
(c) If, notwithstanding the use of best efforts by Parent and Merger Sub to satisfy its obligations under Section 6.14(b), any of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange Financing or the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default Commitments (or any event definitive financing agreement relating thereto) expire or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or are terminated prior to the Knowledge Closing, in whole or in part, for any reason, Parent and Merger Sub shall (i) promptly notify the Company of Purchaser, any other party to any Financing Commitment such expiration or definitive document related to termination and the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; reasons therefor and (Cii) if promptly arrange for any reason Purchaser believes in good faith that alternative financing (x) there is a reasonable likelihood to which shall be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace pay for the Financing as promptly as practicable consummation of the Merger from other sources and without the imposition which do not include any conditions of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and that are more onerous than or in addition to the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) to replace the financing contemplated by such expired or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions terminated commitments or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser STPK 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, proper or advisable to arrange and obtain the PIPE Financing as promptly as (and the Company shall reasonably practicable cooperate with STPK in connection thereto) on a timely basis on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toSubscription Agreements, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using its reasonable best efforts to (i) comply with its respective obligations under the Subscription Agreements, (ii) maintain in effect the Financing CommitmentsSubscription Agreements in accordance with the terms and conditions thereof, (iiiii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Purchaser STPK set forth in the Financing Commitments that are applicable Subscription Agreements within its control control, and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the PIPE Financing (or a portion thereof) at or prior when required pursuant to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitmentsthis Agreement. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser STPK shall give the Sellers Company prompt notice: written notice upon (A) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment of the Subscription Agreements or definitive document related to any termination (or purported termination) of any of the Financing; Subscription Agreements, (B) of the receipt of any written notice or other written communication from any Person party to any Subscription Agreement with respect to any (x) actual actual, potential or potential claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Financing Commitment Subscription Agreement or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; Subscription Agreement and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood STPK does not expect to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain receive all or any portion of the PIPE Financing Amount on the terms, in the manner or from the sources contemplated by the Financing Commitments Subscription Agreements. Other than as set forth in this Section 5.7(a) or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (ASection 5.7(b), (B) or (C) STPK shall not, without the prior written consent of the immediately preceding sentence. Purchaser shall refrain from takingCompany, directly amend, modify, supplement or indirectlywaive any provision of, nor terminate or abandon its plans with respect to, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments Subscription Agreement.
(b) If all or any definitive agreement related thereto. If any portion of the PIPE Financing becomes unavailable on unavailable, (i) STPK shall promptly use its reasonable best efforts to promptly obtain the terms PIPE Financing or such portion of the PIPE Financing from alternative sources in an amount, when added to any portion of the PIPE Financing that is available, equal to the PIPE Financing Amount (any alternative source(s) of financing, “Alternative PIPE Financing”) and conditions contemplated (ii) in the Financing Commitmentsevent that STPK is able to obtain any Alternative PIPE Financing, Purchaser STPK shall use its reasonable best efforts to arrange enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the subscription and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition purchase of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to STPK Class A Shares containing terms and conditions with respect to any alternative financing that arenot less favorable from the standpoint of STPK, Sponsor and the Company than those in the aggregate, materially less favorable in any material respect to Purchaser than those set forth Subscription Agreements entered into as of the date hereof (as determined in the Financing Commitments.
(b) Prior to reasonable good faith judgment of STPK, Sponsor and the Applicable ClosingCompany). In such event, the Sellers term “PIPE Financing” as used in this Agreement shall use their commercially reasonable efforts be deemed to provideinclude any Alternative PIPE Financing, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the term “PIPE Investor” as used in this Agreement shall use their commercially reasonable efforts be deemed to cause their Affiliates and their respective officersinclude any Person that is subscribing for STPK Class A Shares under any Alternative Subscription Agreement. For the avoidance of doubt, directors, employees and agents to provide, at Purchaser’s sole cost and expense, if all reasonable cooperation in connection with the arrangement or any portion of the PIPE Financing as or Alternative PIPE Financing becomes unavailable, STPK may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain utilize deposits, proceeds or any other amounts from the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the LendersTrust Account and, to the extent reasonably requested by Purchaser acceptable to the Company, any additional third party financing to satisfy its financing obligations hereunder (including prior real estate title commitments, surveys, environmental reports and similar informationto satisfy the Minimum Cash Condition), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Merger Agreement (Star Peak Energy Transition Corp.)
Financing. (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Purchaser’s obligations hereunder are not conditioned in any manner upon Purchaser obtaining any financing. The failure, for any reason, of Purchaser to deliver sufficient funds to pay the Closing Date Purchase Price on the Closing Date shall constitute a willful and material breach of this Agreement. In addition, for the avoidance of doubt, Purchaser acknowledges and agrees that the existence of any conditions contained in the Commitment Letter or the Financing shall not constitute, nor be construed to constitute, a condition to the consummation of the transactions contemplated hereby.
(b) Purchaser 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, proper or advisable to (i) arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing CommitmentsCommitment Letter, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing thereto on the terms and subject only to conditions contained in the conditions contemplated by Commitment Letter, which agreements shall be in effect as promptly as practicable after the Financing Commitmentsdate hereof, but in no event later than the Closing, and (iviii) consummate the Financing (or a portion thereof) at or prior to no later than the Applicable Closing, (v) enforce its rights under the Financing Commitments in . In the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, becomes unavailable in the manner or from the sources contemplated by in the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicableCommitment Letter, but in any event within five (5A) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), immediately notify Parent and (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and to obtain financing any such portion from alternative sources as promptly as practicable from alternative sources in an amount sufficient following the occurrence of such event, including entering into definitive agreements with respect thereto (such definitive agreements entered into pursuant to replace the first or second sentence of this Section 4.11(b) being referred to as the “Financing Agreements”). Purchaser shall (x) furnish to Parent complete, correct and executed copies of the Financing as Agreements promptly as practicable and without the imposition upon their execution, (y) give Parent prompt notice of any new or additional conditions and without breach by any adverse amendment to existing conditions to party of any of the FinancingCommitment Letter, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in commitment or the Financing CommitmentsArrangements of which Purchaser becomes aware or any termination thereof and (z) otherwise keep Parent reasonably informed of the status of Purchaser’s efforts to arrange the Financing (or any replacement thereof).
(bc) Prior to Purchaser acknowledges and agrees that Parent and the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates Company and their respective officers, directors, Affiliates and employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation have no responsibility for any financing that Purchaser may raise in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionscontemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Financing. (a) Purchaser Unless, and to the extent, the Buyer Parties have sufficient cash from other sources sufficient to consummate the Merger, and the other Transactions and to pay the Merger Consideration and all other amounts required to be paid by the Buyer Parties in connection with the consummation of the Transactions and any other related fees and expenses, the Buyer Parties 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, proper or advisable to arrange consummate and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toDocuments and in a timely manner, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to including (i) maintain maintaining in effect the Financing CommitmentsDocuments, (ii) satisfy satisfying on a timely basis (or obtain the waiver of) all conditions to the funding of the Financing on the Closing Date applicable to Purchaser the Buyer Parties in the Financing Commitments that are within its control Documents and otherwise the definitive agreements with respect thereto and comply with its covenants and other their obligations thereunder, (iii) negotiate with fully enforcing all of their rights, and all of the Lenders and other third obligations of the institutions parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by Documents, under the Financing CommitmentsDocuments and any definitive agreements relating thereto, and (iv) consummate causing the institutions parties to the Financing (or a portion thereof) Documents to fund the Financing at or prior to the Applicable Closing. The Buyer Parties shall have the right from time to time to amend, (v) enforce its replace, supplement or otherwise modify, or waive any of their rights under under, the Financing Commitments in the event of a breach Documents and/or substitute other debt or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if equity financing for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on from the termssame and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Financing Documents and the definitive agreements with respect thereto that amends the Financing and/or substitution of all or any portion of the Financing shall not impose additional conditions precedent to the Financing as set forth in the Financing Documents that could reasonably be expected to prevent or materially delay the consummation of the Transactions; provided, further, that the Buyer Parties shall not amend, replace, supplement or otherwise modify or waive any provision of the Financing Documents or the definitive agreements with respect thereto in a manner that (A) adversely impacts the ability of the Buyer Parties to enforce their rights against the other parties to the Equity Commitment Agreements or from the sources definitive agreements with respect thereto, or (B) adversely impacts the ability of the Buyer Parties or the Company to enforce their respective rights against the other parties to the Amended Credit Agreement or the definitive agreements with respect thereto. The Buyer Parties shall not release or consent to the termination of the obligations of the Financing Sources under the Financing Documents, except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Financing or as otherwise expressly contemplated by the Financing Commitments or Documents. The Buyer Parties shall be permitted to reduce the definitive documents related amount of Financing under the Financing Documents in their reasonable discretion, provided that the Buyer Parties shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of the Buyer Parties, including cash on hand of the Buyer Parties and the Company, to consummate the Transactions, and provided, further, that such reduction shall not impose additional conditions precedent to the Financing. As soon Financing as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained set forth in the Financing Commitments Documents that could reasonably be likely to prevent or any definitive agreement related theretomaterially delay the consummation of the Transactions. If any portion of the Financing becomes unavailable on in the terms and conditions manner or from the sources contemplated in the Financing CommitmentsDocuments and such portion is reasonably required to fund the Merger Consideration, Purchaser the Buyer Parties shall use its reasonable best efforts to arrange and obtain alternative financing as promptly as practicable from alternative sources in an amount sufficient to replace consummate the Financing Transactions as promptly as reasonably practicable following the occurrence of such event. The Buyer Parties shall promptly provide the Company with the documentation evidencing such alternative sources of financing, including all relevant agreements, other financing documents and without any proposed amendments or waivers thereto, and shall give the imposition Company prompt notice (but in any event within two (2) Business Days) of any new material breach by any party to a Commitment Letter or additional conditions any termination of a Commitment Letter. The Buyer Parties shall keep the Company reasonably informed on a current basis and without any adverse amendment in reasonable detail of the status of their effort to existing conditions to arrange the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to For the Applicable Closingavoidance of doubt, if the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts Buyer Parties fail to obtain the FinancingFinancing contemplated by the Financing Documents or any alternative financing, the Buyer Parties shall continue to be obligated to perform their obligations under this Agreement, including this Section 6.06, and to consummate the Transactions on the terms contemplated hereby (i) provide readily-available financial and other information relating subject only to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing satisfaction or reasonably necessary for the completion waiver of the Financing by the Lendersconditions set forth in Section 7.01 and Section 7.02) unless and until this Agreement is terminated in accordance with Article VIII. The parties hereby agree and acknowledge that, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the LendersBuyer Parties’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation obligations pursuant to this Section 7.05(b) shall delay 6.06, time is of the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related essence. Notwithstanding anything to the Financingcontrary in this Agreement, or (C) incur there shall be no cure period for any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed breach by Purchaser (without set-off). Purchaser shall, without the right Buyer Parties of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections6.06.
Appears in 1 contract
Sources: Merger Agreement (AmREIT, Inc.)
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only has provided to the Company a true and complete copy, as of the date hereof, of an executed commitment letter from the financial institutions identified therein and a corresponding fee letter (which may be redacted solely to omit fee amounts and the economic terms of the "market flex" items in a customary manner, and none of which redactions would reduce the aggregate principal amount, adversely affect the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment to funding or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Debt Financing under the Financing Commitments or otherwise limit, prevent, impede or delay the consummation of the TransactionsDebt Financing) without (as amended, modified or supplemented in accordance with the prior written consent terms herein, the "Fee Letter") (together with all exhibits, annexes, schedules and term sheets attached thereto and as may be amended, supplemented, modified, replaced or extended from time to time to the extent permitted by Section 7.15, collectively, the "Debt Commitment Letter"), providing, subject to the terms and conditions therein, debt financings in the amounts set forth therein for the purpose of funding the Transactions (the applicable debt financing under the Debt Commitment Letter is referred to herein as the "Debt Financing"). The execution, delivery and performance of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting Debt Commitment Letter by Purchaser and the generality consummation of the foregoingtransactions contemplated thereby, Purchaser shall use reasonable best efforts to have been duly and validly authorized by all requisite corporate action by Purchaser. The Debt Commitment Letter (i) maintain in effect the Financing Commitments, has been duly and validly executed by Purchaser and (ii) satisfy on is a timely basis legal, valid and binding obligation of Purchaser and, to the Knowledge of Purchaser, the other parties thereto, in each case except as enforceability may be limited by the Bankruptcy and Equity Exception. As of the date hereof, the Debt Commitment Letter is in full force and effect and the respective obligations and commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded or terminated or otherwise amended or modified in any respect, and no withdrawal, rescission, amendment or modification thereof is contemplated by Purchaser or, to the Knowledge of Purchaser, any other party thereto, or the subject of any discussions with Purchaser or, to the Knowledge of Purchaser, any other party thereto (other than any customary amendment to include new lenders, lead arrangers or other financial institutions or as expressly provided for thereunder upon obtaining (or obtain not obtaining) the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, Amendment (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financingas defined therein); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments). Upon the reasonable request As of the Sellersdate hereof, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any no event or circumstance thathas occurred which, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material would constitute a breach or default) by Purchaserdefault on the part of Purchaser or, or to the Knowledge of Purchaser, any of the other party to any Financing Commitment or definitive document related parties to the Financing; Debt Commitment Letter. Assuming (Bi) the accuracy of the receipt representations in all material respects set forth in Articles III, IV and V, (ii) the performance by the Company and its Subsidiaries of the covenants and agreements set forth in Section 7.1, and (iii) that the Debt Financing is funded in accordance with its terms, the net proceeds from the Debt Financing, together with cash on hand of Purchaser and cash on hand of the Company and its Subsidiaries, will be sufficient for Purchaser to consummate the Transactions, including the repayment of any written notice Indebtedness of the Company and its Subsidiaries contemplated by this Agreement or the Debt Commitment Letter and the payment of the maximum amount of all related fees and expenses (including all indicative, "flex" and other fees and original issue discount) payable by Purchaser in connection with the Transactions. Purchaser has paid in full any and all commitment or other written communication from any Person fees required in connection with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing the Debt Commitment or any definitive document related Letter that are due as of the date hereof. The only conditions precedent to the obligations of the Debt Financing Sources to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter, and assuming the accuracy of the representations in all material respects set forth in Articles III, IV and V and the performance of the covenants and agreements set forth in this Agreement by each of the Company and its Subsidiaries, Purchaser does not have any provisions reason to believe that any of any Financing Commitment or any definitive document related the conditions to the Debt Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able satisfied or that the Debt Financing will not be available to obtain all Purchaser on the date of the Closing. There are no side letters or other Contracts or any portion understandings, conditions or contingencies (except for the Fee Letter), relating to or affecting the Debt Financing to which Purchaser or any of its Subsidiaries or any of their respective Affiliates is a party other than as expressly set forth in the Debt Commitment Letter that would (i) impair the enforceability of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A)Debt Commitment Letter, (Bii) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any impose new or additional conditions and without any adverse amendment to existing conditions precedent to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Debt Financing, (iii) cause reduce the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate aggregate principal amount of the principal financial officer of each of Debt Financing that is available at the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) Closing or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation ofotherwise materially limit, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delayprevent, impede or otherwise adversely affect delay the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships consummation of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Debt Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Merger Agreement (Cable One, Inc.)
Financing. (aa)(i) Purchaser 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, proper or advisable to arrange and obtain the Purchaser Financing as promptly as reasonably practicable on the terms and subject only conditions described in the Debt Financing Commitments, to the conditions contained extent required taking into account the Equity Financing Commitment, including reasonable best efforts to (A) maintain in effect the Debt Financing Commitments, (B) satisfy on a timely basis all conditions applicable to Purchaser obtaining the Debt Financing (including by consummating the Equity Financing at or prior to the Closing), (C) enter into definitive agreements as contemplated therein on terms and conditions described in or contemplated by the Debt Financing Commitments and (D) consummate the Debt Financing at or prior to the Closing (including by taking enforcement actions, subject to any applicable Law, against the lenders and other Persons providing the Purchaser Financing to fund such Purchaser Financing). Purchaser shall obtain the Equity Financing contemplated by the Equity Financing Commitments upon satisfaction or waiver of the conditions to Closing in Section 6.2 (other than those conditions that by their nature will not be satisfied until the Closing). Purchaser shall not agree to or permit any amendment amendment, supplement or other modification to be made toof, or waive any waiver of any provision or remedy its rights under, any Financing Commitment or any definitive agreements related to the Financing Commitments (except for any such amendmentsPurchaser Financing, modifications or waivers whichin each case, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the Seller’s prior written consent of the Sellers, (which consent shall not be unreasonably withheld, conditioned delayed or delayed. Without limiting conditioned), except to correct typographical errors, provide for the generality assignment of a portion of the foregoingDebt Financing Commitment to additional agents or arrangers or to reallocate commitments or assign or reassign titles or roles to, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitmentsor between or among, (ii) satisfy on a timely basis (any entities party thereto or obtain the where such amendment, supplement, modification or waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect is not materially adverse to the Financing on interests of Seller and does not prevent, impede or delay the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions consummation of any Financing Commitment or the transactions contemplated by this Agreement. Upon any definitive document related to the Financing such amendment, supplement or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion modification of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with this Section 4.11, the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.term “
Appears in 1 contract
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable Financing, in an amount sufficient to permit Purchaser pay the Specified Uses when required in accordance with the terms hereof, and otherwise on the terms and subject only to conditions (including the conditions contained flex provisions) described in the Financing Commitments. Purchaser Credit Agreement and shall not permit any amendment amendment, replacement or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any Credit Agreement, if such amendmentsamendment, modifications replacement, modification or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to waiver (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis reduces (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or defaulthave the effect of reducing) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) aggregate amount of the receipt Financing (including by increasing the amount of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood fees to be a material dispute paid or disagreement between or among any parties to any Financing Commitment or any definitive document related to original issue discount, unless the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing Specified Uses to be funded using cash on the terms, in the manner or from the sources contemplated hand is increased by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (Bcorresponding amount) or (Cii) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any imposes new or additional conditions and without or otherwise expands, amends, replaces or modifies any adverse amendment to existing of the conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and or otherwise expands, amends, replaces or modifies any other provision of the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that areCredit Agreement, in a manner that would reasonably be expected to (A) delay or prevent or make less likely the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement funding of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion satisfaction of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating conditions to the Financing) on the Closing Date or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or adversely impact the ability of Purchaser to enforce their rights against other agreement or document related parties to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off)Credit Agreement. Purchaser shallshall promptly deliver to Yellow copies of any such amendment, without the right modification or replacement. For purposes of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) 6.6(a), references to “Financing” shall include the financing contemplated by the Credit Agreement as permitted to be amended, modified or in connection with the arrangement of the Financing replaced by Section 6.6(d), and references to “Credit Agreement” shall include such documents as permitted to be amended, modified or (2) any information utilized in connection therewith (other than information relation to Sellers approved replaced by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections6.6(a).
Appears in 1 contract
Sources: Asset Purchase Agreement (XPO, Inc.)
Financing. (a) Purchaser shall use its reasonable best efforts agrees to takenotify Seller promptly (but in any event within two (2) Business Days) if, or cause at any time prior to be takenthe Closing Date, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain (i) the Financing as promptly as reasonably practicable Commitment shall expire or be terminated for any reason, (ii) any financing source that is a party to the Financing Commitment notifies Purchaser that such source no longer intends to provide financing to Purchaser on the terms and subject only set forth therein, or (iii) for any reason Purchaser no longer believes in good faith that it will be able to obtain any of the conditions contained financing substantially on the terms described in the Financing CommitmentsCommitment. Purchaser shall not, and shall not permit any amendment of its Subsidiaries or modification to be made Affiliates to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersSeller, which consent shall not be unreasonably withheld, conditioned take any action or delayed. Without limiting the generality enter into any transaction, including, without limitation, any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing that would impair, materially delay or prevent Purchaser’s obtaining of the foregoingfinancing contemplated by the Financing Commitment. Purchaser shall not amend or alter, or agree to amend or alter, the Financing Commitment in any manner that would impair, materially delay or prevent the consummation of the transactions contemplated hereby without the prior written consent of Seller, which consent shall not be unreasonably withheld.
(b) If the Financing Commitment shall be terminated or modified in a manner adverse to Purchaser for any reason (excluding immaterial modifications affecting pricing (but not amount)), Purchaser shall use its commercially reasonable best efforts to (i) maintain in effect obtain, and will provide Seller with a copy of, a new financing commitment from a financial institution reasonably acceptable to Seller that provides for at least the same amount of financing as the Financing CommitmentsCommitment as originally issued, (ii) satisfy on a timely basis (or obtain the waiver of) all funding conditions applicable to Purchaser no less favorable than those included in the Financing Commitments that are within its control and otherwise comply with its covenants Commitment as originally issued, and other obligations thereunder, (iii) negotiate with terms and conditions the Lenders and other third parties and enter into definitive agreements with respect aggregate effect of which is not materially adverse to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event ability of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required Purchaser to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to contemplated hereby in comparison with those terms and conditions that arecontained in the Financing Commitment as originally issued, which extension or new commitment shall include a termination date not earlier than the Termination Date. Purchaser shall accept any such new commitment letter if the funding conditions and other terms and conditions contained therein, in the aggregate, are not materially less favorable adverse to Purchaser than in comparison with those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing Commitment as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsoriginally issued.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bell Industries Inc /New/)
Financing. (a) Purchaser Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Refinancing, from and after the execution of this Agreement, DigitalGlobe 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment Letter and shall not permit any amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Commitment Letter, if such amendment, modification, replacement or waiver (i) reduces the aggregate amount of the Financing Commitments (including by changing the amount of fees to be paid or original issue discount except for by operation of the “market flex” provisions) or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of any portion of the Financing in a manner that would or would reasonably be expected to (A) delay or prevent the Closing or the Closing Date or (B) make the satisfaction of the conditions to obtaining the Financing materially less likely to occur or (C) adversely impact the ability of DigitalGlobe to enforce its rights against other parties to the Commitment Letter or the Definitive Agreements, in any material respect, including any right to seek specific performance of the Commitment Letter or the Definitive Agreements. Subject to the limitations set out in the first sentence of this Section 6.17(a), DigitalGlobe may amend, supplement, modify or replace the Commitment Letter as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement, (y) to increase the amount of indebtedness and (z) to replace all or a portion of the facility committed under the Commitment Letter as in effect as of the date hereof with one or more new facilities under such Commitment Letter or under any new commitment letter or facility (any such new commitment or facility, a “Replacement Facility”) in a manner not materially less beneficial to DigitalGlobe (as determined in the reasonable judgment of DigitalGlobe), provided that any amendments, modifications or waivers which, individually or replacements of any Replacement Facility shall be subject to the same limitations that apply to the Commitment Letter as set forth in the aggregatefirst sentence of this Section 6.17(a). For purposes of this Agreement, would not (1) the term “Financing” shall be reasonably expected deemed to preventinclude the financing contemplated by the Commitment Letter as permitted to be amended, delay modified or impair replaced pursuant to this Section 6.17 (including any Replacement Facility, any Alternative Financing), and (2) the availability of term “Commitment Letter” shall be deemed to include the Commitment Letter as may be permitted to be amended, modified or replaced pursuant to this Section 6.17, any Replacement Facility, and any commitment letters with respect to the Alternative Financing and any related fee letters (it being understood that any Replacement Facility or Alternative Financing shall be subject to the terms herein that apply to the Commitment Letter).
(b) Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersRefinancing, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser DigitalGlobe shall use its reasonable best efforts to (i) maintain in effect the Financing CommitmentsCommitment Letter pursuant to its terms (except for amendments not prohibited by Section 6.17(a)) until the transactions contemplated hereby are consummated, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including any applicable “market flex” provisions) contained in the Commitment Letter (“Definitive Agreements”) or on other terms not materially less favorable to DigitalGlobe than the terms and conditions (including any applicable “market flex” provisions) contained in the Commitment Letter, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser funding in the Financing Commitments Commitment Letter that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing in accordance with the terms and conditions of the Commitment Letter at or prior to the Closing, (viv) enforce its rights under the Financing Commitments Commitment Letter in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at Refinancing on the Applicable Closing (including taking enforcement action to cause Date by the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms lenders and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the other Persons providing Financing and any (v) comply in all material developments relating to respects with its covenants and other obligations under the Financing. Commitment Letter (or obtain the waiver thereof).
(c) Without limiting the generality of the foregoing, Purchaser DigitalGlobe shall give the Sellers GeoEye reasonably prompt notice: (Ai) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or party to the Knowledge of Purchaser, any other party to any Financing Commitment Letter or definitive document related to the FinancingFinancing of which it becomes aware; (Bii) of the receipt of any written notice or other written communication from any Person Financing Source with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing the Commitment Letter or any definitive document related to the Financing of any provisions of any Financing the Commitment Letter or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (Ciii) if for any reason Purchaser DigitalGlobe believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on required to consummate the termsRefinancing.
(d) Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Refinancing, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, DigitalGlobe shall use its reasonable best efforts to, as promptly as practicable, arrange alternative debt financing from the same or alternative sources in an amount sufficient to consummate the Refinancing (the “Alternative Financing”) following the occurrence of such event; provided however, that DigitalGlobe shall not be required to obtain financing which includes terms and conditions materially less favorable (taking into account any “market flex” provision) to DigitalGlobe, in each case relative to those in the Financing Commitmentsbeing replaced. DigitalGlobe shall promptly notify GeoEye of the receipt of any written notice from any lender named in the Commitment Letter to withdraw, Purchaser terminate or reduce the aggregate amount of Financing contemplated by, the Commitment Letter.
(e) On and prior to the Closing, GeoEye shall, and shall cause GeoEye Subsidiaries to, and shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates its and their respective officers, directors, employees and agents Representatives to provide, at Purchaser’s sole cost and expense, all reasonable cooperation reasonably cooperate with DigitalGlobe in connection with the arrangement of Financing, including (i) promptly providing the Financing Sources and their agents with all financial and other pertinent information regarding GeoEye and GeoEye Subsidiaries required to be delivered pursuant to the Commitment Letter or as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing DigitalGlobe or reasonably necessary for the completion of the Financing by the Lenders, Sources or their respective agents to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of prepare customary bank information memoranda and similar documents lender presentations in connection with such Financing; (ii) participating (including historical by making members of senior management with appropriate seniority and pro forma financial statements expertise available to participate) in a reasonable number of meetings, due diligence sessions, presentations, “road shows”, drafting sessions and information) for sessions with the rating agencies in connection with the Financing, ; (iii) cause reasonably cooperating with the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the SellersFinancing Sources’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lendersits agents’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or not unreasonably interfere interfering with the ongoing operations business of Sellers and the Sellers shall not GeoEye; (Aiv) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.reasonably cooperating
Appears in 1 contract
Sources: Merger Agreement (GeoEye, Inc.)
Financing. (a) Purchaser Parent 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, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to conditions described in or contemplated by the conditions contained in the Debt Financing Commitments. Purchaser Commitments and shall not permit agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, under the Debt Financing Commitments (except for any without the prior written consent of the Company if such amendments, modifications or waivers whichwould or would reasonably be expected to (w) reduce the aggregate amount of the Debt Financing below the amount required to consummate the Merger and repay or refinance the debt contemplated in this Agreement or the Financing Commitments, (x) impose new or additional conditions to the receipt of the Debt Financing, (y) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (z) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Commitments (provided, that, for the avoidance of doubt, Parent and Merger Sub may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties, individually or in the aggregate, would not be reasonably expected to prevent, prevent or materially delay or impair the availability of the Financing financing under the Debt Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellerstransactions contemplated by this Agreement), which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts to (i) maintain in effect the Debt Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Purchaser Parent and Merger Sub in the Debt Financing Commitments that are within its control (including by consummating the financing pursuant to the terms of the Equity Financing Commitments) and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing thereto on the terms and subject only to conditions (including the conditions flex provisions) contemplated by the Debt Financing Commitments (or terms and conditions no less favorable, in the aggregate, to Parent and Merger Sub (in the reasonable judgment of Parent) than the terms and conditions in the Debt Financing Commitments), (iv) in the event that all conditions in the Debt Financing Commitments (other than the availability or funding of any Equity Financing) have been satisfied, consummate the Debt Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Debt Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise in the event that all conditions in the Debt Financing Commitments (other than the availability or funding of any Equity Financing) have been satisfied, cause the Lenders lenders and other persons providing Debt Financing to fund on the Applicable Closing Date the Debt Financing (or a portion thereof) required to consummate the Merger and the other transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financingcontemplated hereby. Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall give the Sellers Company prompt notice: (A) upon becoming aware of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or material default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the FinancingFinancing of which Parent or Merger Sub become aware; (B) of the receipt of any written notice or other written communication from any Person party to any Financing Commitment with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of or any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute Parent or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it Merger Sub will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments Commitment or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser Company delivers Parent or Merger Sub a written request, Purchaser Parent and Merger Sub shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (ai) Subject to the terms and conditions of this Agreement, each of Parent and Purchaser 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, proper or advisable to arrange and obtain the Transaction Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained flex provisions and taking into account the Marketing Period) described in the Financing Commitments. Purchaser Debt Commitment Letter and the Equity Commitment Letter at the Acceptance Time (taking into account the Marketing Period), and shall not not, without the prior written consent of the Company, permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Equity Commitment Letter, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding of the Transaction Financing Commitments contemplated by the Debt Commitment Letter and the Equity Commitment Letter (except for or satisfaction of the conditions precedent to the Transaction Financing) on the Closing Date in any such amendments, modifications material respect or waivers which, individually (y) extend or permit the extension of the Marketing Period or Minimum Notes Marketing Period (in each case as defined in the aggregateDebt Commitment Letter) (provided that, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersCompany, which consent shall not be unreasonably withheldParent may amend the Debt Commitment Letter (A) to favorably modify pricing terms or add additional lenders, conditioned arrangers, bookrunners and agents or delayed. Without limiting the generality (B) to implement or exercise any of the foregoing“market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Debt Commitment Letter). Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement. For purposes of this Section 8.11, references to “Transaction Financing” shall include the Transaction Financing contemplated by the Debt Commitment Letter and the Equity Commitment Letter as permitted to be amended, modified or replaced by this Section 8.11(a) and references to “Debt Commitment Letter” and/or “Equity Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 8.11(a). Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall have the right to substitute other debt or equity financing for all or any portion of the Transaction Financing contemplated by the Debt Commitment Letter and/or the Equity Commitment Letter from the same and/or alternative Debt Financing Sources and/or Equity Financing Sources so long as such substitute financing would not materially and adversely impact the ability of Parent and Purchaser to consummate the transactions contemplated by this Agreement on a timely basis.
(ii) Each of Parent and Purchaser shall use its reasonable best efforts (A) to (i) maintain in effect the Financing CommitmentsDebt Commitment Letter and the Equity Commitment Letter (except to the extent replaced in accordance with Section 8.11(a), (iiB) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on Debt Commitment Letter and the Equity Commitment Letter consistent in all material respects with the terms and subject only conditions (including the flex provisions and taking into account the Marketing Period) contained in the Debt Commitment Letter and the Equity Commitment Letter (or on terms no less favorable (taken as a whole) to Parent and Purchaser than the terms and conditions contemplated by (including flex provisions) in the Financing CommitmentsDebt Commitment Letter and the Equity Commitment Letter), (ivC) to satisfy (or obtain the waiver of) on a timely basis all conditions precedent to funding in the Debt Commitment Letter and the Equity Commitment Letter and such definitive agreements thereto (taking into account the Marketing Period and other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information described in Section 8.11(b)) that are within Parent’s control so as to consummate the Transaction Financing (or a portion thereof) at or prior to the Applicable Closing, Acceptance Time and (vD) to enforce its rights under the Financing Commitments Debt Commitment Letter and the Equity Commitment Letter and such definitive agreements thereto. Parent shall keep the Company reasonably informed on a current basis and in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Transaction Financing and any material developments relating provide to the Company copies of the material definitive agreements for the Transaction Financing. Without limiting the generality of the foregoing, Purchaser Parent shall give the Sellers Company prompt notice: notice (Ax) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing of the Debt Commitment Letter or the Equity Commitment Letter or definitive document agreements related to the Financing; Transaction Financing of which Parent becomes aware, (By) of the receipt of (I) any written notice or (II) other written communication communication, in each case from any Person Debt Financing Source or Equity Financing Source with respect to any (x) actual or potential material breach, default, termination or repudiation by any party to any Financing of the Debt Commitment Letter or any the Equity Commitment Letter or definitive document agreements related to the Transaction Financing of any provisions of any Financing the Debt Commitment Letter or any the Equity Commitment Letter or definitive document agreements related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Transaction Financing; , and (Cz) if at any time for any reason Purchaser Parent believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Transaction Financing on the termsterms and conditions, in the manner or from the sources contemplated by any of the Financing Commitments Debt Commitment Letter and the Equity Commitment Letter or the definitive documents agreements related to the Transaction Financing. As soon as reasonably practicablepracticable after any notice by Parent to the Company of the type described in the immediately preceding sentence, but in any event within five (5) two Business Days after of the date the Sellers deliver Company delivers to Purchaser Parent a written request, Purchaser Parent shall use reasonable best efforts to provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (Ax), (By) or (Cz) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, ; provided that Parent need not provide any action that is reasonably likely to information the disclosure of which could result in the failure loss of any conditions contained in the Financing Commitments attorney-client privilege or any definitive agreement related theretothat is requested for purposes of litigation. If all or any portion of the Transaction Financing becomes unavailable on for any reason, and such portion is reasonably required to pay the terms aggregate Offer Consideration and conditions Merger Consideration, repay the Retired Debt and pay all fees, expenses and other amounts contemplated in the Financing Commitmentsto be paid by Parent, Purchaser and the Surviving Corporation pursuant to this Agreement, Parent, Purchaser and the Surviving Corporation shall use its their reasonable best efforts to arrange and obtain financing as promptly as practicable in replacement thereof alternative debt and/or equity Transaction Financing from alternative sources in an amount sufficient to replace the sufficient, when taken together with available cash of Parent and any then-available Transaction Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions pursuant to the FinancingDebt Commitment Letter and the Equity Commitment Letter, to consummate the Offer and Purchaser’s obligations under this Section 7.05(a) shall apply to the Merger, with such alternative financing and the agreements related thereto as if such alternative financing is the Transaction Debt Financing and any commitment related thereto is the or Transaction Equity Financing Commitments; provided, that Purchaser shall not be required to agree to having terms and conditions with respect to any alternative financing that are, in the aggregate, not materially less favorable in any material respect (taken as a whole) to Parent and Purchaser than those the terms and conditions (taken as a whole) set forth in the Financing CommitmentsDebt Commitment Letter and the Equity Commitment Letter, as promptly as reasonably practicable following the occurrence of such event. Parent shall deliver to the Company true and complete copies of all commitment letters and fee letters (as redacted in a customary manner to remove the fee amounts, pricing caps, the rates and amounts included in the “market flex” and certain other terms (none of which could reasonably be expected to adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Transaction Financing)) pursuant to which any such alternative source shall have committed to provide any portion of the Transaction Financing. Notwithstanding anything in this Section 8.11 or elsewhere in this Agreement to the contrary, in no event shall the “reasonable best efforts” of Parent and Purchaser be deemed or construed to require any such Person to, and no such Person shall be required to, pay any financing fees in the aggregate in excess of those contemplated by the Debt Commitment Letter and the Equity Commitment Letter, or agree to conditionality or economic terms of the financing that are (other than as specified in the preceding sentence) materially less favorable than those contemplated by the Debt Commitment Letter and the Equity Commitment Letter or any related fee letter (including any “flex” provision therein).
(b) Prior With respect to the Applicable ClosingTransaction Financing, prior to the Acceptance Time, the Sellers shall use their commercially reasonable efforts to provideCompany shall, and shall cause its Subsidiaries to, and use their commercially reasonable best efforts to cause their Affiliates its and their the Company’s Subsidiaries’ respective officers, directors, employees and agents Representatives to provide, at Purchaser’s sole cost and expense, all reasonable provide to Parent such cooperation in connection with the arrangement of the Transaction Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the FinancingParent, including to including:
(i) provide readily-available financial assisting in preparation for and other information relating to the Sellers to the Lenders participation, upon reasonable advance notice, in a reasonable number of meetings and calls (including information to be used customary one-on-one meetings with parties acting as lead arrangers, bookrunners or agents for, and prospective lenders of, the Transaction Financing), drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions), in each case taking into account the affected personnel’s other professional obligations, and assisting Parent in obtaining ratings in respect of Parent and public ratings in respect of any debt issued as part of the Transaction Financing from Standard & Poor’s Financial Services LLC and ▇▇▇▇▇’▇ Investors Service, Inc.;
(ii) assisting Parent and its potential financing sources in the preparation of an informational package (A) customary offering documents, private placement memoranda, bank information memoranda, prospectuses and similar marketing documents for any of the Transaction Financing (including the provision of “backup” support), including the execution and delivery of customary representation or authorization letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information regarding the business, operations, financial projections Company or the Company’s Subsidiaries or their respective securities (in each case in accordance with customary syndication practices) and prospects of Purchaser containing a representation that the public-side version does not include material non-public information about the Company and its Subsidiaries or their securities and (B) customary materials for rating agency presentations for the Business Transaction Financing;
(iii) delivering to Parent the Required Financial Information;
(iv) delivering to Parent and Purchased Assets which is customary for their potential financing sources as promptly as reasonably practicable (x) such financing or information as may be reasonably necessary for the completion of the Financing by the LendersRequired Financial Information to remain Compliant and (y) such other pertinent financial and other customary information (including assistance with preparing projections, financial estimates, forecasts and other forward-looking information) to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist Parent in connection with the preparation of bank the offering or information memoranda documents to be used for the Transaction Financing and similar documents identified in paragraphs 10 and 11 of Exhibit D to the Debt Commitment Letter, as applicable, and assisting Parent in preparing pro forma (including historical A) balance sheets and related notes as of the most recently completed interim period, and (B) income statements and related notes for the most recently completed fiscal year, for the most recently completed interim period and for the most recently completed twelve month period for the end of such most recently completed interim period, in each case prepared after giving effect to the transactions described in the Debt Commitment Letter as if such transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statements of income) and any other pro forma financial statements information required by Regulation S-X in connection with the Transaction Financing; provided that none of the Company, any of the Company’s Subsidiaries or any of their Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information;
(v) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use using commercially reasonable efforts to obtain from cause its independent registered public accounting firm for the Sellers’ Transaction Financing, to cooperate with Parent in connection with the Transaction Financing, including, but solely for the Transaction Financing, by (x) assisting with the due diligence activities of Parent and their Affiliates’ advisorsthe Financing Sources and (y) at, or conditional upon, the Applicable Closing providing customary certificates “comfort letters” (including a certificate customary “negative assurances”) and to provide customary consents to the inclusion of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their audit reports in any materials relating to the Financing) or other relevant offering documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, marketing materials;
(ivvi) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use using commercially reasonable efforts to have ensure that the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Transaction Financing and (viii) assist Purchaser and the Lenders to benefit benefits from the existing lending relationships of the Sellers Company and the Company’s Subsidiaries;
(vii) assisting to identify the steps for repayment on the Closing Date of the Credit Facility, Company Bonds and other Retired Debt of the Company or the Company’s Subsidiaries other than indebtedness which may be mutually agreed and cooperating with any back-stop, “roll-over” or termination of any existing letters of credit thereunder (and the release and discharge of all related Liens and security interests), by providing to Parent at least three (3) Business Days prior to Closing customary pay-off letters (in substantially final form, taking into account any final interest calculations the lenders might need to conduct to finalize closer to the Closing);
(viii) subject to customary SunGard provisions with respect to limited conditionality and certain funds set forth in the Debt Commitment Letter, deliver possessory collateral contemplated thereby on the Closing Date;
(ix) at least three (3) Business Days prior to the expected Closing Date, provide all documentation and other information relating to the Company and the Company’s Subsidiaries that the Financing Sources reasonably determine is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent reasonably requested by Parent at least ten (10) Business Days prior to the expected Closing Date; and
(x) reasonable participation by senior financial officers of the Company and its Subsidiaries in the negotiation of the definitive documentation for the Transaction Financing.
(c) The Company hereby consents to the use of all of its and the Company’s Subsidiaries’ logos in connection with the Transaction Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or the Company’s Subsidiaries or the reputation or goodwill of the Company or any of the Company’s Subsidiary; and subject to the prior review by, and consent of, the Company (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding any other provision set forth herein or in any other agreement between Parent and the Company (or their respective Affiliates), the Company agrees that Parent and its Affiliates may share customary projections with respect to the Company and its business, which are approved for distribution by the Company, with their potential financing sources and other prospective lenders in connection with any marketing efforts in connection with the Transaction Financing; providedprovided that the recipients of such information agree to customary confidentiality arrangements. Notwithstanding anything to the contrary in this Agreement, howevernone of the Company, that no requested cooperation pursuant to any of the Company’s Subsidiaries or any of its or their respective directors or officers or other personnel shall be required by this Section 7.05(b) shall delay the Applicable Closing, 8.11 to take any action or provide any assistance that unreasonably interfere interferes in any material respect with the ongoing operations of Sellers the Company and the Sellers shall not (A) be required Company’s Subsidiaries, or would cause a breach or violation of any Law, Contract or permit, or to pay execute or deliver any commitment certificate, document, instrument or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related that is effective prior to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.Closing Date
Appears in 1 contract
Sources: Merger Agreement (Time Inc.)
Financing. (ai) Subject to the terms and conditions of this Section 5.07, the Purchaser 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, proper or advisable to arrange and obtain the Acquisition Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitments (including any “flex” provisions applicable thereto) and, prior to the Closing, shall not, without the prior written consent of the Sellers (such consent not to be unreasonably withheld, conditioned or delayed), permit any amendment amendment, replacement, supplement or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for or the definitive agreements with respect thereto, if any such amendmentsamendment, modifications replacement, supplement, or waivers which, individually other modification to or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability waiver of the Financing under Commitments that amends the Acquisition Financing, would (A) reduce the aggregate amount of the Acquisition Financing (including by changing the amount of fees to be paid or original issue discount) to an amount committed below the amount that is required, together with other financial resources of the Purchaser including cash of the Purchaser on the Closing Date, to consummate the transactions contemplated by this Agreement, (B) impose new or additional conditions or other terms or otherwise expand upon any of the conditions to the receipt of the Acquisition Financing or other terms in a manner that would reasonably be expected to (x) materially delay, materially impair or prevent the consummation of the transactions contemplated by this Agreement, (y) make, in any material respect, the timely funding of the Acquisition Financing or satisfaction of the conditions to obtaining the Acquisition Financing less likely to occur or (z) adversely impact, in any material respect, the ability of the Purchaser to enforce its rights against other parties to the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control draw upon and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Acquisition Financing, or (C) incur any out-of-pocket expense unless such expense is advanced be reasonably expected to prevent or simultaneously reimbursed materially delay or impair the consummation of the transactions contemplated by Purchaser (without set-off)this Agreement. Purchaser shallFor the avoidance of doubt, without the right syndication of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred the Debt Financing to the extent permitted by them the Debt Commitment Letters shall not be deemed to violate Purchaser’s obligations under this Agreement. Any reference in connection with this Agreement to (1) any action taken “Acquisition Financing” shall include the financing contemplated by them at the request of Purchaser pursuant to Financing Commitments as amended or modified in compliance with this Section 7.05(b) or in connection with the arrangement of the Financing or 5.07 and (2) any information utilized “Financing Commitments”, “Equity Commitment” or “Debt Commitment Letters” shall include such documents as amended, replaced, supplemented or otherwise modified in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to compliance with this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections5.07.
Appears in 1 contract
Sources: Purchase Agreement (Forterra, Inc.)
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable in a timely manner on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersDocuments, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use include reasonable best efforts to (i) maintain in full force and effect the Financing CommitmentsDocuments, (ii) satisfy satisfy, or cause its Representatives to satisfy, on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control Documents and otherwise comply with its covenants such definitive agreements thereto, and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) fully enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, Documents and (viiv) otherwise cause subject to the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the termsDocuments, in the manner or from the sources contemplated by draw upon and consummate the Financing Commitments at or the definitive documents related prior to the Financing. As soon as reasonably practicable, but in any event within five Closing.
(5b) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsDocuments, Purchaser (A) Parent shall promptly so notify the Company, and (B) each of Parent and Merger Sub shall use its reasonable best efforts to arrange and to obtain alternative financing from the same or alternate sources, as promptly as practicable from alternative sources following the occurrence of such event, in an amount sufficient sufficient, when added to replace the portion of the Financing as promptly as practicable that is available, to consummate the Merger and other Transactions (the “Alternative Financing”), and to enter into new definitive agreements with respect to such Alternative Financing (the “Alternative Financing Documents”); provided that, without the imposition prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), no Alternative Financing Document shall impose any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is not present in the Financing Document it is replacing which could reasonably be expected to interfere with the ability of Parent and Merger Sub to consummate the Merger or otherwise expand any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsDocument it is replacing or contain any other terms that could reasonably be expected to materially and adversely affect or delay the ability of Parent to obtain such Alternative Financing or enforce its rights against the other parties thereto. For purposes of this Section 7.14, references hereunder with respect to the “Financing” shall include the financing contemplated by the Financing Documents as permitted to be replaced, amended or supplemented by this Section 7.14 and any Alternative Financing and references hereunder with respect to the “Financing Documents” shall include such documents as permitted to be replaced, amended or supplemented by this Section 7.14 and any Alternative Financing Documents.
(bc) Prior to Parent shall give the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement Company prompt notice of any breach or threatened breach by any party of the Financing as may be Documents, and of any termination or threatened termination of the Financing Documents. Parent shall keep the Company informed on a reasonably requested by Purchaser and that is customary current basis in connection with Purchaser’s reasonable detail of the status of its efforts to obtain arrange the Financing.
(d) Each of Parent and Merger Sub acknowledges and agrees that the obtaining of the Financing shall not be a condition to the Closing, and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing, including subject to the applicable conditions set forth in Article VIII, the breach of which obligation will give rise to the remedies set forth in Article IX.
(e) Each of Parent and Merger Sub shall not permit any amendment, modification or supplement to be made to, or any waiver of any provision under, the Financing Documents, if such amendments, modifications or supplements would (i) provide readily-available financial and other information relating to reduce (or would have the Sellers to effect of reducing) the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion aggregate amount of the Financing unless the Financing is increased by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information)a corresponding amount or additional Financing is otherwise made available, (ii) assist in impose new or additional conditions or otherwise expand, amend or modify any of the preparation conditions to the Financing to the extent the same could reasonably be expected to interfere with the ability of bank information memoranda Parent and similar documents (including historical and pro forma financial statements and information) for Merger Sub to consummate the FinancingMerger, or (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) atotherwise adversely impair, delay, or conditional upon, prevent the Applicable Closing customary certificates (including a certificate consummation of the principal financial officer Transactions or the ability of each of Parent to enforce its rights against the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shallparties thereto, without the right of set-offCompany’s prior written consent (which consent shall not be unreasonably withheld, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered delayed or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use thereinconditioned). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Merger Agreement (Global-Tech Advanced Innovations Inc.)
Financing. (a) Purchaser Each of Parent and Merger Sub 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained “market flex” provisions applicable thereto) described or contemplated in the Financing Commitments. Purchaser Letters pursuant to the terms thereof (or on such terms and conditions that are acceptable to each of Parent, Merger Sub and the providers of the applicable Financing in their sole discretion so long as such other terms and conditions are not prohibited by this Section 4.10(a)) and, taking into account the expected timing of the Marketing Period, satisfy the conditions to the Financing that are within Parent’s control as described in the Financing Letters, and shall not permit any termination (other than in accordance with its terms), amendment or modification to be made to, or any waiver of any provision under, or remedy underany replacement of, the Financing Commitments Letters if such termination, amendment, modification, waiver or replacement (except for any such amendments, modifications or waivers which, individually or in A) reduces the aggregate, would not be reasonably expected to prevent, delay or impair the availability aggregate amount of the Financing under unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or (y) after giving effect to such termination, amendment, modification, waiver or replacement, the representation and warranty set forth in the last sentence of Section 3.7 shall be true and correct or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Financing in a manner that would reasonably be expected to (x) delay (taking into account the expected timing of the Marketing Period) or prevent the funding of the Financing Commitments (or satisfaction of the conditions to the Financing) on the Closing Date or (y) materially and adversely impact the ability of Parent or Merger Sub to enforce its rights against other parties to the Financing Letters or the consummation definitive agreements, if any, with respect thereto or, taking into account the expected timing of the Transactions) without Marketing Period, consummate the prior written consent transactions contemplated hereby; provided, that Parent and Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the Sellersdate hereof. Parent shall promptly deliver to the Company copies of any such termination, which consent shall not be unreasonably withheldamendment, conditioned modification, waiver or delayed. Without limiting the generality replacement.
(b) Each of the foregoing, Purchaser Parent and Merger Sub shall use its reasonable best efforts (A) to (i) maintain in effect the Financing CommitmentsLetters, (iiB) satisfy on a timely basis (or obtain taking into account the waiver of) all conditions applicable expected timing of the Marketing Period, to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into on the Closing Date definitive agreements with respect to the Financing Debt Commitment Letter on the terms and subject only to conditions (including the conditions “market flex” provisions applicable thereto) described or contemplated by in the Financing Commitments, (iv) consummate the Financing Debt Commitment Letter (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to such terms and conditions that areare acceptable to each of Parent, Merger Sub and the providers of the Debt Financing in the aggregatetheir sole discretion, materially less favorable so long as such terms and conditions are not prohibited by Section 4.10(a)), (C) to Purchaser enforce its rights (other than those set forth in through litigation) under the Financing Commitments. Upon Letters and (D) to comply with its obligations under the reasonable request Financing Letters to the extent the failure to comply with such obligations would adversely impact the amount or, taking into account the expected timing of the SellersMarketing Period, Purchaser the availability of the Financing at the Closing. Parent shall inform keep the Sellers Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and any material developments relating and, upon the reasonable written request to Parent, provide to the Company executed copies of the definitive agreements, if any, for the Debt Financing. Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall give the Sellers Company prompt notice: notice (Ax) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any of the Financing Commitment or definitive document related Letters or, to the Financing; extent entered into and effective prior to the Closing Date, definitive agreements relating to the Financing of which Parent or Merger Sub become aware, (By) of the receipt of any written notice or other written communication from any Person Financing Source with respect to any (x1) actual or potential breach, default, termination (other than in accordance with its terms) or repudiation by any party to any of the Financing Commitment or any Letters or, to the extent entered into and effective prior to the Closing Date, definitive document agreements related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing Letters or (y2) material dispute or material disagreement between relating to the Financing with respect to the obligation to fund the Financing or among the amount of the Financing to be funded at Closing (but excluding, for the avoidance of doubt, any parties ordinary course negotiations with respect to any the terms of the Financing Commitment or any the definitive document related agreements with respect to the Financing; ), and (Cz) if at any time for any reason Purchaser Parent or Merger Sub believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely possibility that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the FinancingLetters. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser Company delivers Parent or Merger Sub a written request, Purchaser Parent and Merger Sub shall provide any information reasonably requested by the Sellers Company relating to any circumstance the circumstances referred to in clause (Ax), (By) or (Cz) of the immediately preceding sentence. Purchaser ; provided, that in no event shall refrain from taking, directly or indirectly, Parent be required to share any action information with the Company that is reasonably likely subject to result attorney-client or other privilege if Parent and Merger Sub shall have used their reasonable best efforts to disclose such information in the failure of any conditions contained in the Financing Commitments or any definitive agreement related theretoa way that would not waive such privilege. If any portion of the Debt Financing otherwise becomes unavailable unavailable, Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain in replacement thereof, as promptly as reasonably practicable, alternative financing from alternative sources in an amount sufficient, when added to the portion of the Financing and cash on hand of the Company and its Subsidiaries that is and remains available to Parent and Merger Sub, to fund the Required Uses (“Alternative Financing”); provided, that in no event shall Parent be required to, and in no event shall its reasonable best efforts be deemed or construed to require that it, obtain Alternative Financing that (1) includes terms (including any “market flex” provisions applicable thereto) that are less favorable in any material respect to Parent than those contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto) in effect on the terms and date hereof, (2) involves any conditions contemplated to funding of the Debt Financing that are not contained in the Debt Commitment Letter as in effect on the date hereof or (3) would reasonably be expected to prevent, impede, or delay the consummation of the transactions contemplated by this Agreement. Parent shall promptly deliver to the Company true and complete copies of any debt commitment letter and related fee letter (in the case of any such fee letter, redacted in a manner consistent with the Redacted Fee Letter) pursuant to which any such alternative source shall have committed to provide any Alternative Financing Commitments(the “Alternative Financing Commitment Letter”). The Company acknowledges and agrees that Parent and Merger Sub shall not be required to consummate the Debt Financing before the final day of the Marketing Period. As applicable, Purchaser references in this Agreement (other than with respect to representations in this Agreement made by Parent and Merger Sub that speak as of the date hereof) (i) to “Financing” and “Debt Financing” shall include any such Alternative Financing and (ii) to “Financing Letters” shall include any such Alternative Financing Commitment Letter.
(c) Prior to the Closing Date, the Company shall, and shall cause each of its Subsidiaries to, and shall use its reasonable best efforts to arrange cause its and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financingits Subsidiaries’ respective Representatives to, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates its and their respective officers, directors, employees and agents reasonable best efforts to provide, at Purchaser’s sole cost and expense, provide all reasonable cooperation reasonably requested by Parent in connection with the arrangement Debt Financing or any permitted replacement, amended, modified or alternative financing (including, solely for purposes of this Section 4.10(c), one or more offerings of “high yield” non-convertible debt securities to be issued or incurred in lieu of any bridge facility contemplated by the Debt Commitment Letter or pursuant to any “market flex” or securities demand provisions of the Financing as may be reasonably requested by Purchaser and that is customary in connection Redacted Fee Letter) (collectively with Purchaser’s efforts to obtain the Debt Financing, including to the “Available Financing”), including:
(i) provide readily-available financial furnishing Parent and other Merger Sub and their Financing Sources, promptly following Parent’s request, with such pertinent and customary information relating to regarding the Sellers to the Lenders Company and its Subsidiaries (including information to be used in the preparation of an informational package one or more information packages regarding the business, operations, financial projections business and prospects operations of Purchaser the Company and the Business its Subsidiaries) as is necessary or customary and Purchased Assets which is customary for such financing or as may be reasonably necessary requested in writing by Parent for the completion arrangement or marketing of the Available Financing by or for the Lenderspreparation of any syndication, offering or other similar marketing materials and/or documents or rating agency or lender presentations relating to, or in connection with, any Available Financing, and including all information and data regarding the Company and its Subsidiaries necessary to satisfy the conditions set forth in paragraphs 5 and 10 of Exhibit E of the Debt Commitment Letter,
(ii) furnishing Parent and Merger Sub and their Financing Sources with the Required Information;
(iii) to the extent reasonably requested by Purchaser Parent, furnishing Parent and Merger Sub and their Financing Sources with information with respect to the Company and its Subsidiaries to the extent reasonably available to the Company as may be necessary in order for Parent to prepare a customary pro forma consolidated balance sheet and related pro forma consolidated statements of income of the Surviving Corporation and its Subsidiaries that include the most recent periods covered by the Required Information (including prior real estate title commitmentsit being understood that Parent, surveysand not the Company or its Subsidiaries or their respective Representatives, environmental reports and similar information), (ii) assist in shall be responsible for the preparation of bank information memoranda and similar documents (including historical and the pro forma financial statements and any other pro forma information, including any pro forma adjustments);
(iv) for to the extent reasonably requested by Parent, participating in a reasonable number of meetings (including customary one-on-one meetings), presentations and roadshows with, on the one hand, the parties acting as lead arrangers, bookrunners, underwriters or agents for, and prospective lenders, investors and purchasers of, the Available Financing, and, on the other hand, management and Representatives (iiiwith appropriate seniority and expertise) cause of the Sellers Company, due diligence sessions (including directing the Company’s auditors to participate therein or in separate accounting due diligence calls), drafting sessions and sessions with rating agencies, and reasonably cooperating with the marketing efforts of Parent and Merger Sub and their Affiliates Financing Sources, in each case in connection with the Available Financing and with appropriate advance notice and at times and locations to execute be mutually agreed between Parent and deliver the Company;
(v) to the extent reasonably requested by Parent, assisting with the preparation of appropriate and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) atcustomary materials for rating agency presentations, or conditional uponoffering documents, the Applicable Closing customary certificates bank information memoranda (including a certificate of version that does not include material non-public information regarding the principal financial officer of each of the Sellers with respect to solvency mattersCompany and its Subsidiaries), accounting private placement memoranda, prospectuses and similar documents required in connection with the Available Financing; provided, that any such documents in relation to debt securities shall not be issued by the Company or any of its Subsidiaries, and provided, further, that any rating agency presentations, offering documents, bank information memoranda, private placement memoranda, prospectuses and similar documents required in connection with the Available Financing shall reflect the Surviving Corporation and/or its Subsidiaries as the obligors;
(vi) to the extent reasonably requested by Parent, directing the Company’s auditors to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by Parent with respect to financial information (including pro forma financial information) of the Company included in any offering documents relating to Available Financing that consists of registered or Rule 144A marketed debt securities in which the consolidated financial statements of the Company are included, and, if required, customary consents of accountants for to the use of their audit reports on the consolidated historical financial statements of the Company in any materials offering documents relating to the FinancingAvailable Financing in which the consolidated historical financial statements of the Company are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards;
(vii) to the extent reasonably requested by Parent, obtaining, and executing and delivering, customary authorization and representation letters with respect to the bank information memoranda;
(viii) to the extent reasonably requested by Parent, assisting in the preparation of, and executing and delivering, one or more credit agreements, indentures, pledge and security documents, purchase agreements, currency or interest hedging agreements, other definitive financing documents and instruments relating other customary certificates or documents (including the execution and delivery of a solvency certificate by the chief financial officer of, or person performing similar functions for, the Company and its Subsidiaries substantially in the form of Annex I to guarantees and other matters ancillary Exhibit E to the Financing Debt Commitment Letter) on terms that are reasonably requested by Parent in connection with the Available Financing, and taking organizational actions as may be reasonably requested by PurchaserParent in connection with the Available Financing; provided, that such agreements and actions shall become operative after or concurrently with, the occurrence of the Closing;
(ivix) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetingsreasonably requested by Parent, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate cooperating reasonably with the Lenders’ due diligencediligence of the Financing Sources of the Debt Financing, to the extent customary and reasonable;
(x) assisting with the payoff, discharge and termination of the Company Credit Agreement and any other Indebtedness requested by Parent pursuant to Section 4.15(a) or (viib) refrain from pursuing any financing transactions to be paid off, discharged or terminated at or after the Effective Time, including by arranging for, and executing and delivering, customary prepayment notices, payoff letters, lien terminations and instruments of discharge, in each case in a customary form; provided, that may delayobligations with respect to payoff, impede or otherwise adversely affect discharge and termination of the Company Notes are set forth in Section 4.15(b) — (g) and not this Section 4.10(c)(x);
(xi) to the extent reasonably requested by Parent, assisting Parent in procuring public corporate ratings and corporate family ratings in respect of the Company and public ratings of the facilities contemplated by the Available Financing;
(xii) no less than four (4) Business Days prior to the Closing Date, furnishing to Parent and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least ten (viii10) assist Purchaser Business Days prior to the Closing Date about the Company and its Subsidiaries that the Lenders Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company or any of its Subsidiaries qualifies as “legal entity customers” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(xiii) updating any Required Information provided to benefit from the existing lending relationships of the Sellers and their AffiliatesParent as may be necessary for such Required Information to remain Compliant; provided, however, that that, no requested cooperation obligation of the Company or any of its Subsidiaries pursuant to this Section 7.05(b4.10(c) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability Section 4.15 under any credit agreement, note purchase agreementcertificate, indenture, hedging agreement document or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith instrument (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers the authorization and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.representation letters referr
Appears in 1 contract
Sources: Merger Agreement (Zayo Group LLC)
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub 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, proper or advisable to arrange consummate and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toFinancing, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts to (i) maintain in effect the applicable Financing CommitmentsLetters and, to the extent entered into prior to the Closing, the definitive agreements relating to the applicable Financing (subject to Parent’s or Merger Sub’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith); (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Debt Financing on the terms and subject only conditions no less favorable in the aggregate to Parent than those contained in the conditions Debt Commitment Letter (after giving effect to any modifications thereto contemplated by the “flex” provisions in the Redacted Fee Letter) (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing CommitmentsModifications); (iii) satisfy on a timely basis (taking into account the anticipated timing of the Closing) (or obtain a waiver of) all conditions applicable to (and within control of) Parent and Merger Sub in the applicable Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing; and (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate Merger, consummate the Financing and cause the Financing Sources, the Guarantors and the other Persons committing to fund the Financing to fund the Financing at (or a portion thereofsubstantially concurrently with) at or prior the Closing. Notwithstanding anything to the Applicable Closingcontrary in this Agreement, nothing contained in this Section 6.4 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (x) seek the Equity Financing from any source other than the Guarantors, or in any amount in excess of that contemplated by, the Equity Commitment Letters, (vy) enforce its rights under incur or pay any material fees to obtain a waiver of any term of the Financing Commitments in the event of a breach Debt Commitment Letter or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions pay any fees that are, in the aggregate, materially in excess of those contemplated by the Equity Commitment Letters or the Debt Commitment Letter or (z) agree to terms and conditions that are less favorable in any material respect to Purchaser Parent or Merger Sub (or their Affiliates) than those the terms and conditions set forth in the Financing CommitmentsDebt Commitment Letter. Upon Parent shall keep the Company informed upon the Company’s written request on a reasonable request of the Sellers, Purchaser shall inform the Sellers basis and in reasonable detail of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Parent shall give the Sellers Company prompt notice: (A) notice upon becoming aware having knowledge of any material breach or default (by any party to any of the Financing Letters or any event termination of any of the Financing Letters.
(b) Prior to the Closing Date, Parent and Merger Sub shall not, without the prior written consent of the Company (not to be unreasonably withheld, conditioned or circumstance thatdelayed), with subject to the last sentence of this paragraph, agree to or without noticepermit any termination of or amendment, lapse supplement or modification to be made to, or grant any waiver of time any provision under, the Debt Commitment Letter or boththe Redacted Fee Letter if such termination, could amendment, supplement, modification or waiver would (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter on the Agreement Date unless the amount of the Debt Financing or Equity Financing is increased by a corresponding amount) such that Parent or Merger Sub, as applicable, would not have sufficiently available funds necessary to pay the Required Amounts on the Closing Date; (B) impose new or additional conditions precedent to the availability of the Debt Financing or expand or amend or modify any of the existing conditions precedent to the Debt Financing, in each case, in a manner that would reasonably be expected to materially delay or prevent the Closing; or (C) otherwise reasonably be expected to materially delay or prevent the Closing (any such termination, amendment, supplement, modification or waiver described in the foregoing clauses (A) through (C), collectively, the “Prohibited Financing Modifications”). Notwithstanding the foregoing, any amendment, supplement or modification to add or replace lenders, lead arrangers, bookrunners, syndication agents or other similar entities (or titles with respect to such entities) thereto shall be permitted and shall not require written consent of the Company. Parent shall promptly deliver to the Company copies of any written amendment, modification, supplement, consent or waiver to or under the Debt Commitment Letter promptly upon execution thereof.
(c) Parent shall, upon Company’s reasonable written request, keep the Company informed on a reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and, upon Company’s reasonable request, provide, to the extent available, to the Company complete, correct and executed copies of the material definitive documents for the Debt Financing. Parent and Merger Sub shall give rise to the Company prompt written notice (i) of any material breach breach, default, termination, cancellation or default) repudiation by Purchaser, or any party to the Knowledge Debt Commitment Letter of Purchaser, any other party to any Financing Commitment which Parent or definitive document related to the FinancingMerger Sub becomes aware; (Bii) of the receipt by Parent or Merger Sub of any written notice or other written communication from any Person Financing Source with respect to any (x) actual or potential alleged (in writing) material breach, default, termination termination, cancellation or repudiation by any party to any Financing the Debt Commitment or any definitive document related to the Financing Letter of any provisions of any the Debt Commitment Letter that would reasonably be expected to result in a reduction of the aggregate amount of the Debt Financing Commitment (including by increasing the amount of fees to be paid or any definitive document related original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter on the Agreement Date unless the amount of the Debt Financing or (yEquity Financing is increased by a corresponding amount) material dispute such that Parent or disagreement between Merger Sub, as applicable, would not have sufficiently available funds necessary to pay the Required Amounts on the Closing Date or among any parties to any Financing Commitment impose new or any definitive document related additional conditions precedent to the availability of the Debt Financing or expand or amend or modify any of the existing conditions precedent to the Debt Financing, in each case, in a manner that would reasonably be expected to materially delay or prevent the Closing; and (Ciii) if for any reason Purchaser believes of the occurrence of an event or development that would reasonably be expected to result in good faith that a reduction of the aggregate amount of the Debt Financing (x) there is a reasonable likelihood including by increasing the amount of fees to be a material dispute paid or disagreement between or among any parties to any Financing Commitment or any definitive document related original issue discount as compared to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources fees and original issue discount contemplated by the Debt Commitment Letter on the Agreement Date unless the amount of the Debt Financing Commitments or Equity Financing is increased by a corresponding amount) such that Parent or Merger Sub, as applicable, would not have sufficiently available funds necessary to pay the definitive documents related Required Amounts on the Closing Date or impose new or additional conditions precedent to the availability of the Debt Financing or expand or amend or modify any of the existing conditions precedent to the Debt Financing, in each case, in a manner that would reasonably be expected to materially delay or prevent the Closing. As soon as reasonably practicableAdditionally, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser Parent and Merger Sub shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly subject to applicable legal privilege or indirectlyconfidentiality obligations.
(d) If, any action that is reasonably likely to result in notwithstanding the failure use of any conditions contained in the Financing Commitments reasonable best efforts by Parent and Merger Sub, as applicable, under Section 6.4(a), all or any definitive agreement related thereto. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter and such portion is necessary to fund the Required Amounts on the Closing Date (after taking into account any available Equity Financing, other committed financing or other sources of cash then available), Parent shall promptly notify the Company in the Financing Commitments, Purchaser writing and Parent and Merger Sub shall use its their reasonable best efforts to arrange and obtain obtain, prior to the Termination Date, alternative debt financing as promptly as practicable from the same or alternative sources in an amount sufficient to replace sufficient, together with the remaining available Financing as promptly as practicable and without the imposition of any new cash or additional conditions and without any adverse amendment to existing conditions to the Financingcash equivalents held by Parent, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing Merger Sub and the agreements related thereto as if such alternative financing is Company and its Subsidiaries, to fund the Financing Required Amount on the Closing Date and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to with terms and conditions not less favorable to Parent and Merger Sub (or their respective Affiliates) in the aggregate than the terms and conditions set forth in the Debt Commitment Letter (“Alternative Debt Financing”). Parent shall deliver to the Company true and complete copies of any commitment letters (including related fee letters) with respect to any alternative financing that are, Alternative Debt Financing (which fee letters may be redacted in a fashion consistent with the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsRedacted Fee Letter).
(be) Prior For purposes of this Agreement, references to (x) the Applicable Closing, “Financing” shall include the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of financing contemplated by the Financing Letters as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information permitted to be used in amended, modified, supplemented, waived or replaced by this Section 6.4 and any Alternative Debt Financing; (y) the preparation of an informational package regarding the business“Debt Commitment Letter” shall include such documents as permitted to be amended, operationsmodified, financial projections supplemented, waived or replaced by this Section 6.4 and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing any commitment letter or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers other binding documentation with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Alternative Debt Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing ; and (viiiz) assist Purchaser and “Debt Financing” shall include the Lenders debt financing contemplated by the Debt Commitment Letter as permitted to benefit from the existing lending relationships of the Sellers and their Affiliates; providedbe amended, howevermodified, that no requested cooperation pursuant to supplemented, waived or replaced by this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers 6.4 and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Alternative Debt Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Merger Agreement (Tufin Software Technologies Ltd.)
Financing. (a) Purchaser Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Refinancing, from and after the execution of this Agreement, DigitalGlobe 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment Letter and shall not permit any amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Commitment Letter, if such amendment, modification, replacement or waiver (i) reduces the aggregate amount of the Financing Commitments (including by changing the amount of fees to be paid or original issue discount except for by operation of the “market flex” provisions) or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of any portion of the Financing in a manner that would or would reasonably be expected to (A) delay or prevent the Closing or the Closing Date or (B) make the satisfaction of the conditions to obtaining the Financing materially less likely to occur or (C) adversely impact the ability of DigitalGlobe to enforce its rights against other parties to the Commitment Letter or the Definitive Agreements, in any material respect, including any right to seek specific performance of the Commitment Letter or the Definitive Agreements. Subject to the limitations set out in the first sentence of this Section 6.17(a), DigitalGlobe may amend, supplement, modify or replace the Commitment Letter as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement, (y) to increase the amount of indebtedness and (z) to replace all or a portion of the facility committed under the Commitment Letter as in effect as of the date hereof with one or more new facilities under such Commitment Letter or under any new commitment letter or facility (any such new commitment or facility, a “Replacement Facility”) in a manner not materially less beneficial to DigitalGlobe (as determined in the reasonable judgment of DigitalGlobe), provided that any amendments, modifications or waivers which, individually or replacements of any Replacement Facility shall be subject to the same limitations that apply to the Commitment Letter as set forth in the aggregatefirst sentence of this Section 6.17(a). For purposes of this Agreement, would not (1) the term “Financing” shall be reasonably expected deemed to preventinclude the financing contemplated by the Commitment Letter as permitted to be amended, delay modified or impair replaced pursuant to this Section 6.17 (including any Replacement Facility, any Alternative Financing), and (2) the availability of term “Commitment Letter” shall be deemed to include the Commitment Letter as may be permitted to be amended, modified or replaced pursuant to this Section 6.17, any Replacement Facility, and any commitment letters with respect to the Alternative Financing and any related fee letters (it being understood that any Replacement Facility or Alternative Financing shall be subject to the terms herein that apply to the Commitment Letter).
(b) Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersRefinancing, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser DigitalGlobe shall use its reasonable best efforts to (i) maintain in effect the Financing CommitmentsCommitment Letter pursuant to its terms (except for amendments not prohibited by Section 6.17(a)) until the transactions contemplated hereby are consummated, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including any applicable “market flex” provisions) contained in the Commitment Letter (“Definitive Agreements”) or on other terms not materially less favorable to DigitalGlobe than the terms and conditions (including any applicable “market flex” provisions) contained in the Commitment Letter, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser funding in the Financing Commitments Commitment Letter that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing in accordance with the terms and conditions of the Commitment Letter at or prior to the Closing, (viv) enforce its rights under the Financing Commitments Commitment Letter in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at Refinancing on the Applicable Closing (including taking enforcement action to cause Date by the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms lenders and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the other Persons providing Financing and any (v) comply in all material developments relating to respects with its covenants and other obligations under the Financing. Commitment Letter (or obtain the waiver thereof).
(c) Without limiting the generality of the foregoing, Purchaser DigitalGlobe shall give the Sellers GeoEye reasonably prompt notice: (Ai) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or party to the Knowledge of Purchaser, any other party to any Financing Commitment Letter or definitive document related to the FinancingFinancing of which it becomes aware; (Bii) of the receipt of any written notice or other written communication from any Person Financing Source with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing the Commitment Letter or any definitive document related to the Financing of any provisions of any Financing the Commitment Letter or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (Ciii) if for any reason Purchaser DigitalGlobe believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on required to consummate the termsRefinancing.
(d) Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Refinancing, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, DigitalGlobe shall use its reasonable best efforts to, as promptly as practicable, arrange alternative debt financing from the same or alternative sources in an amount sufficient to consummate the Refinancing (the “Alternative Financing”) following the occurrence of such event; provided however, that DigitalGlobe shall not be required to obtain financing which includes terms and conditions materially less favorable (taking into account any “market flex” provision) to DigitalGlobe, in each case relative to those in the Financing Commitmentsbeing replaced. DigitalGlobe shall promptly notify GeoEye of the receipt of any written notice from any lender named in the Commitment Letter to withdraw, Purchaser terminate or reduce the aggregate amount of Financing contemplated by, the Commitment Letter.
(e) On and prior to the Closing, GeoEye shall, and shall cause GeoEye Subsidiaries to, and shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates its and their respective officers, directors, employees and agents Representatives to provide, at Purchaser’s sole cost and expense, all reasonable cooperation reasonably cooperate with DigitalGlobe in connection with the arrangement of Financing, including (i) promptly providing the Financing Sources and their agents with all financial and other pertinent information regarding GeoEye and GeoEye Subsidiaries required to be delivered pursuant to the Commitment Letter or as may be reasonably requested by Purchaser DigitalGlobe or the Financing Sources or their respective agents to prepare customary bank information memoranda and that is customary lender presentations in connection with Purchaser’s such Financing; (ii) participating (including by making members of senior management with appropriate seniority and expertise available to participate) in a reasonable number of meetings, due diligence sessions, presentations, “road shows”, drafting sessions and sessions with the rating agencies in connection with the Financing; (iii) reasonably cooperating with the Financing Sources’ and its agents’ due diligence, to the extent not unreasonably interfering with the business of GeoEye; (iv) reasonably cooperating with the marketing efforts to obtain for any portion of the Financing, including using its reasonable best efforts to ensure that any syndication effort benefits from any existing banking relationship; (iv) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the cooperating with DigitalGlobe’s preparation of bank information memoranda and similar documents documents, rating agency presentations, and road show presentations used to complete such Financing, to the extent information contained therein relates to the business of GeoEye and GeoEye Subsidiaries; (vi) using reasonable best efforts to cause its certified independent auditors to provide, in connection with the Financing, (A) applicable consent to SEC filings that include or incorporate GeoEye’s consolidated financial information (with such changes as GeoEye and its auditors deem necessary or appropriate) and their reports thereon, in each case, to the extent such consent is required, auditors reports and comfort letters with respect to financial information relating to GeoEye and GeoEye Subsidiaries in customary form and (B) other documentation (including historical and reasonable assistance in the preparation of pro forma financial statements and information) for the Financingby DigitalGlobe, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financingextent such other documentation is required); provided that it is understood that assumptions underlying the pro forma adjustments to be made are the responsibility of DigitalGlobe; (vii) providing customary certificates, legal opinions of internal counsel or other customary closing documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, DigitalGlobe or its Financing Sources in connection with the Financing; (ivviii) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreementsagreements on terms contemplated by the Commitment Letter in connection with the Financing; (ix) taking all actions reasonably necessary in connection with the payoff of existing indebtedness of GeoEye and GeoEye Subsidiaries on the Closing Date and the release of related Liens on the Closing Date (including any necessary prepayment of GeoEye’s existing indebtedness); (x) executing and delivering any pledge and security documents or other definitive financing documents reasonably requested by DigitalGlobe or its Financing Sources in connection with the Financing, including by refraining from entering into any competing financing transactionsin each case of clauses (vii), (vviii), (ix) use commercially reasonable efforts to have and (x), conditional upon the independent accountants actual occurrence of the Sellers provide their reasonable cooperation Closing; (xi) reasonably cooperating with DigitalGlobe in providing customary information with respect to its property and assistance, (vi) cooperate assets reasonably required in connection with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and reasonably facilitating the pledging of collateral and providing of guarantees with respect to the Financing upon Closing and, subject to the occurrence of the Closing, taking corporate actions necessary to permit the consummation of the Financing; (viiixii) assist Purchaser assisting DigitalGlobe as reasonably requested thereby in seeking to obtain ratings from M▇▇▇▇’▇ Investors Service, Inc. and Standard and Poor’s Rating Services, a division of The McGraw Hill Companies, Inc., with respect to the borrower of the Financing and the Lenders senior secured facilities described in the Commitment Letter; and (xiii) delivering to benefit from DigitalGlobe for further distribution to the existing lending relationships lenders under the Financing all documentation and other information required by bank regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the U.S.A. PATRIOT ACT (Title III of the Sellers and their AffiliatesPub. L. 107 56 (signed into law October 26, 2011)); provided, however, that no requested nothing herein shall require such cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or extent it would interfere unreasonably interfere with the ongoing business or operations of Sellers and GeoEye or the Sellers shall not GeoEye Subsidiaries. Notwithstanding the foregoing, (A) neither GeoEye nor any of the GeoEye Subsidiaries shall be required to pay take any commitment action that would subject it to actual or other similar feepotential liability, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur bear any out-of-pocket cost or expense unless such expense is advanced or simultaneously not reimbursed by Purchaser DigitalGlobe or to pay any commitment or any similar fee or incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing, prior to the Closing and (without setB) neither GeoEye nor any of the GeoEye Subsidiaries shall be required to execute prior to the Closing any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Financing. All non-off). Purchaser shallpublic or other confidential information provided by GeoEye or any of its Representatives pursuant to this Section 6.17(e) shall be kept confidential in accordance with the Confidentiality Agreement, without except that DigitalGlobe shall be permitted to disclose such information to potential financing sources and to rating agencies during the right syndication and marketing of set-off, the Financing subject to customary confidentiality undertakings by such potential financing sources.
(f) DigitalGlobe shall indemnify and hold harmless Sellers GeoEye, GeoEye Subsidiaries and their respective subsidiaries and Representatives from and against any and all Losses liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the Financing or the arrangement thereof (1) including any action taken by them at the request of Purchaser pursuant to this in accordance with Section 7.05(b6.17(e)) or in connection with the arrangement of the Financing or (2) and any information utilized in connection therewith (other than information relation relating to Sellers approved by Sellers GeoEye or GeoEye Subsidiaries provided to DigitalGlobe in writing on or behalf of GeoEye, GeoEye Subsidiaries or its and their Representatives expressly for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject Financing). For purposes of Section 7.02(b), the obligations of GeoEye as set forth in the foregoing Section 6.17(e)(vi)(A) shall be deemed to customary confidentially protectionsexclude the phrase “using reasonable best efforts”.
Appears in 1 contract
Sources: Merger Agreement (Digitalglobe Inc)
Financing. (a) Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund the Sale Amounts on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Purchaser shall to take, or cause to be taken all actions and to do, or cause to be done, all things necessary, advisable or proper or advisable to arrange and obtain the proceeds of the Financing as promptly as reasonably practicable on the terms and subject only conditions described in the Commitment Letters as promptly as possible but in any event prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof, including by (i) maintaining in effect the Commitment Letters, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying on a timely basis all conditions in the Commitment Letters and the Definitive Agreements and complying with its obligations thereunder. Purchaser shall enforce its rights under the Commitment Letters and Definitive Agreements in a timely and diligent manner. Without limiting the generality of the foregoing, in the event that all conditions contained in the Financing Commitments. Commitment Letters or the Definitive Agreements (other than the consummation of the Sale) have been satisfied, Purchaser shall not cause the Lenders and the Equity Financing Source to comply with their respective obligations thereunder, including to fund the Financing.
(i) Purchaser shall not, without the prior written consent of Seller: (A) permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments Commitment Letters or the Definitive Agreements if such amendment, modification, waiver or remedy (except for 1) adds new (or adversely modifies any such amendments, modifications existing) conditions to the consummation of all or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability any portion of the Financing under Financing, (2) reduces the Financing Commitments amount of the Financing, (3) adversely affects the ability of Purchaser to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Purchaser to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (4) would impede or delay the consummation of the TransactionsSale and the other transactions contemplated by this Agreement; or (B) without terminate the prior written consent Commitment Letters or any Definitive Agreement. Purchaser shall promptly deliver to Seller copies of any such amendment, modification, waiver or replacement.
(ii) In the event that any portion of the SellersFinancing becomes unavailable, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality regardless of the foregoingreason therefor, Purchaser shall will (A) use reasonable best efforts to obtain alternative debt financing (i) maintain in effect the Financing Commitmentsan amount sufficient, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate when taken together with the Lenders and other third parties and enter into definitive agreements with respect to available portion of the Financing on the terms and subject only to the conditions contemplated by the Financing CommitmentsFinancing, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions contemplated by this Agreement and to be consummated at pay the Applicable Closing (including taking enforcement action Sale Amounts) from the same or other sources and which do not include any conditions to cause the Lenders to provide consummation of such alternative debt financing that are more onerous than the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) promptly notify Seller of such unavailability and the receipt reason therefor. For the purposes of this Agreement, the term “Debt Commitment Letter” shall be deemed to include any written notice commitment letter (or other written communication from any Person similar agreement) with respect to any alternative financing arranged in compliance herewith (x) and any Commitment Letter remaining in effect at the time in question). Purchaser shall provide Seller with prompt oral and written notice of any actual or potential threatened breach, default, termination or repudiation by any party to any Financing the Commitment Letters or any definitive document related to the Financing Definitive Agreement and a copy of any provisions of written notice or other written communication from any Financing Commitment Lender or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain other financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions source with respect to any alternative financing that arebreach, in default, termination or repudiation by any party to the aggregateCommitment Letters or any Definitive Agreement of any provision thereof. Purchaser shall keep Seller reasonably informed on a current basis of the status of its efforts to consummate the Financing. The foregoing notwithstanding, materially less favorable in any material respect compliance by Purchaser with this Section 5.17(a) shall not relieve Purchaser of its to Purchaser than those set forth in consummate the transactions contemplated by this Agreement whether or not the Financing Commitmentsis available.
(b) Prior to the Applicable Closing, the Sellers Seller shall use their commercially its reasonable best efforts to cause the Transferred Entities to provide, and shall use their commercially its reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents the Transferred Entities’ Representatives to provide, all cooperation reasonably requested Purchaser necessary for the arrangement of the Financing, including by (A) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, at Purchaser’s sole cost reasonable times and expensewith reasonable advance notice, all (B) to the extent required by the Debt Financing, using reasonable cooperation efforts to facilitate the pledging of collateral, effective no earlier than the Closing and (C) furnishing Purchaser and the Lenders as promptly as reasonably practicable following the delivery of a request therefor to Seller by Purchaser (which notice shall state with specificity the information requested) such financial and other information regarding the Transferred Entities as is reasonably available to Seller at such time and is customarily required in connection with the arrangement execution of financings of a type similar to the Debt Financing (provided that, Seller will have no obligation to prepare audited financial information, pro forma financial information or post-closing financial information); it being understood that Seller shall have satisfied its obligations set forth in clauses (A) through (C) of this sentence if Seller shall have used its reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. The foregoing notwithstanding, neither the Seller nor the Transferred Entities shall be required to take or permit the taking of any action pursuant to this Section 5.17(b) that: (i) would require (A) Seller or any of its Subsidiaries (other than the Transferred Entities) or any Persons who are officers or directors of Seller or any of its Subsidiaries or Affiliates (other than the Transferred Entities) to pass resolutions or consents to approve or authorize the execution of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts or enter into, execute or deliver any certificate, document, instrument or agreement or agree to obtain any change or modification of any existing certificate, document, instrument or agreement or (B) the Financing, including Transferred Entities or any Persons who are officers or directors of the Transferred Entities to (i) provide readily-available financial and other information relating pass resolutions or consents to approve or authorize the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion execution of the Financing by or enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement in each case prior to the Lenders, Closing (it being understood that in no event shall any Persons who are officers or directors of the Transferred Entities be required take any such actions except as and to the extent reasonably requested by Purchaser (including prior real estate title commitmentsthat such Persons are continuing in such roles following the Closing, surveys, environmental reports and similar informationonly in their roles as such), (ii) assist would cause any representation or warranty in the preparation this Agreement to be breached by Seller or any of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financingits Subsidiaries, (iii) cause (A) would require Seller or any of its Subsidiaries (other than the Sellers and their Affiliates Transferred Entities) to execute and deliver pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Financing or (and use commercially reasonable efforts B) would require the Transferred Entities to obtain from pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Sellers’ and their Affiliates’ advisors) at, Financing prior to the Closing or conditional upon, the Applicable Closing customary certificates (including a certificate have any obligation of the principal financial officer of each of Transferred Entities under any agreement, certificate, document or instrument be effective until the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by PurchaserClosing, (iv) assist in the preparation ofwould cause any director, entering into and, upon reasonable prior notice officer or employee or stockholder of Seller or any of its Subsidiaries to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into incur any competing financing transactionspersonal liability, (v) use commercially reasonable efforts to have would conflict with the independent accountants organizational documents of the Sellers provide their reasonable cooperation and assistanceSeller or any of its Subsidiaries or any Law, (vi) cooperate would reasonably be expected to result in a material violation or breach of, or a default (with the Lenders’ due diligenceor without notice, lapse of time, or both) under, any contract to the extent customary and reasonablewhich Seller or any of its Subsidiaries is a party, (vii) refrain from pursuing would require Seller, any financing transactions of its Subsidiaries or any of their Representatives to provide access to or disclose information that may delaySeller or any of its Subsidiaries determines would jeopardize any attorney-client privilege of Seller or any of its Subsidiaries, impede or otherwise adversely affect the Financing and (viii) assist Purchaser would require Seller, its Subsidiaries or any of their Representatives to prepare any financial statements or information that are not available to Seller and prepared in the Lenders to benefit from the existing lending relationships ordinary course of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(bits financial reporting practice or (ix) shall delay the Applicable Closing, or would unreasonably interfere with the ongoing operations of Sellers and Seller or any of its Subsidiaries. Nothing contained in this Section 5.17 or otherwise shall require (i) Seller or any of its Subsidiaries (other than the Sellers shall not (ATransferred Entities) to be required to pay any commitment an issuer or other similar fee, obligor with respect to the Financing or (Bii) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement the Transferred Entities to be an issuer or other agreement or document related obligor with respect to the FinancingFinancing prior to Closing. Purchaser shall, or (C) incur any promptly upon request by Seller, reimburse Seller for all reasonable out-of-pocket expense unless costs incurred by Seller or its Subsidiaries or their respective Representatives in connection with such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, cooperation and shall indemnify and hold harmless Sellers Seller and its Subsidiaries and their respective subsidiaries and Representatives from and against any and all Losses losses suffered or incurred by them in connection with (1) the arrangement of the Financing, any action taken by them at the request of Purchaser Seller pursuant to this Section 7.05(b5.17(b) or in connection with the arrangement of the Financing or (2) and any information utilized used in connection therewith (other than information relation to Sellers approved provided in writing by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser the Seller or its Representative Subsidiaries specifically in connection with its obligations pursuant to this Section 7.05(b5.17(b)). For the avoidance of doubt, nothing in this Section 5.17 shall require Seller to cause any of its Affiliates, other than a Transferred Entity, to take any actions or provide any cooperation.
(c) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in Section 5.17(b), represent the sole obligation of Seller, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Purchaser with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the exhibits and schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Purchaser or any of its Affiliates or any other financing or other transactions be a condition to any of Purchaser’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, Seller’s breach of any of the covenants required to be performed by it under Section 5.17(b) shall not be considered in determining the satisfaction of the condition set forth in Section 8.02(b), unless such breach is a willful and material breach and is the primary cause of Purchaser being unable to obtain the proceeds of the Financing at the Closing.
(d) All non-public or otherwise confidential information regarding Seller or its Subsidiaries obtained by Purchaser or its Representatives pursuant to Section 5.17(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (CURO Group Holdings Corp.)
Financing. (a) Purchaser Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to arrange and obtain the Financing as promptly as reasonably practicable following the date of this Agreement and to consummate the Financing on the terms and subject only or prior to the conditions contained Closing Date, including commercially reasonable efforts with respect to the following:
(i) (A) maintaining in effect the Financing Commitments. Purchaser shall Commitment Letters, and (B) not permit permitting any amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, and not replacing, any Commitment Letter, if such amendment, modification, waiver or replacement (I) reduces the aggregate amount of the Debt Financing Commitments (except for any such amendmentsincluding by changing the amount of fees to be paid or original issue discount of the Debt Financing unless as part of the relevant amendment, modifications modification, waiver or waivers which, individually or replacement there is a corresponding increase in the aggregateEquity Financing, or (II) would not reasonably be reasonably expected to prevent, (x) materially delay or impair prevent the availability Closing, or (y) in such a way that would make the funding of the Financing under the Financing Commitments (or the consummation satisfaction of the Transactionsconditions to obtaining the Financing) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedless likely to occur. Without limiting the generality of Notwithstanding the foregoing, Purchaser Buyer may modify, restate, supplement, amend or amend and restate the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents, co-agents, other agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof or to increase the amount of funds available thereunder (and Buyer shall use reasonable best efforts promptly deliver copies of any amendment, restatements, supplementation, modification or waiver of the Debt Commitment Letter to (i) maintain in effect the Financing Commitments, Seller);
(ii) satisfy complying in all material respects with its obligations under the Commitment Letters;
(iii) participation by senior management of Buyer in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iv) causing the Financing to be consummated on or prior to the Closing;
(v) satisfying on a timely basis (all Financing Conditions or obtain the waiver of) all other conditions applicable to Purchaser Buyer in the Financing Commitments Commitment Letters that are within its control control;
(vi) negotiating, executing and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated delivering any documents required by the Commitment Letters (including any “market flex” provisions related thereto) and providing copies thereof to Seller;
(vii) borrowing under and using the proceeds of the Debt Financing Commitmentsand using the proceeds of the Equity Financing to finance, in part, the Closing Date Payments and complying with any requirements to obtain such Debt Financing and Equity Financing; and
(ivviii) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce enforcing its rights under the Financing Commitments Commitment Letters in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing)Failure Event; provided, that Purchaser shall Buyer will not be required to agree to terms take legal action against any Financing Source.
(b) Buyer shall consult with and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers keep Seller reasonably informed of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Buyer shall give the Sellers Seller prompt notice: (A) upon becoming aware notice of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination threatened breach or repudiation by any party to any Financing Commitment or any definitive document related Party to the Commitment Letters of which Buyer or its Affiliates becomes aware. Without limiting Buyer’s other obligations under this Section 5.18, if a Financing Failure Event occurs, Buyer shall (i) promptly (within one (1) calendar day) notify Seller of any provisions of any such Financing Commitment or any definitive document related to Failure Event and the Financing or reasons therefor, (yii) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a consultation with Seller use its commercially reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able efforts to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing as promptly as practicable from alternative sources financing sources, in an amount sufficient to replace make the Financing Closing Date Payments and consummate the transactions contemplated by this Agreement, as promptly as practicable and without following the imposition occurrence of any new or additional conditions and without any adverse amendment to existing conditions to the Financingsuch event, and Purchaser’s obligations under this Section 7.05(a(iii) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their its commercially reasonable efforts to provideobtain, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officerswhen obtained, directorsprovide Seller with a copy of, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and a replacement financing commitment that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary provides for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsalternative financing.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Financing. (a) Purchaser Buyer shall use its reasonable best efforts to takenot, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain without the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser prior written consent of Seller (which shall not be unreasonably withheld), permit any amendment or modification to be made to, or any waiver of any provision or remedy underpursuant to, the Debt Commitment Letter if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing Commitments (except below that required to provide the Buyer with the funds necessary for any such amendmentsit to consummate the Contemplated Transactions at the Closing and to perform its obligations under this Agreement, modifications unless the Equity Financing is increased by an equivalent amount or waivers which, individually or due to a reduction in the aggregateBase Purchase Price; (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing, in each case, in a manner that would not reasonably, when taken as a whole, be reasonably expected to prevent, delay or impair prevent in any material respect the availability ability of Buyer to consummate the Financing under Contemplated Transactions or (iii) materially and adversely impact the Financing Commitments or ability of Buyer to enforce its rights against the consummation of other parties to the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedDebt Commitment Letter. Without limiting the generality of Notwithstanding the foregoing, Purchaser assignments consummated pursuant to the terms of the Debt Commitment Letter are permitted. For the avoidance of doubt, Buyer may amend, supplement, modify or replace the Debt Commitment Letter as in effect at the date hereof, (1) as expressly permitted by Section 3.22(c) below or (2) in any manner consistent with the immediately preceding sentence, including, (x) as required pursuant to the market flex provisions in the fee letter, (y) to add or replace lenders, lead arrangers, bookrunners, syndication agents or other parties (for the avoidance of doubt, providing additional or replacement lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect to existing conditions shall not constitute the addition, expansion, amendment or modification of any condition of the Debt Financing), (x) to increase the amount of indebtedness, or (y) to add or replace facilities with one or more new facilities. For purposes of this Section 3.22, references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 3.22.
(b) Buyer shall use reasonable best efforts to obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using commercially reasonable efforts to (i) maintain in effect the Financing Commitments, Debt Commitment Letter; (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control negotiate, execute and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into deliver definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Debt Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable Letters on the terms and conditions contemplated by the Debt Commitment Letters (or on other terms acceptable to Buyer so long as such other terms do not (A) reduce the aggregate amount of the Debt Financing set forth in the Debt Commitment Letter (except as permitted by clause (a) above), (B) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing in a manner that, in either case, would reasonably be expected materially to (1) delay, impair, impede, reduce or prevent or make less likely in any respect the Closing or (2) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (C) adversely impact the ability of Buyer to enforce its rights against the other parties to the Debt Commitment Letters); (iii) taking into account the expected timing of the Marketing Period, satisfy on a timely basis all conditions to funding that are applicable to Buyer in the Financing CommitmentsLetters and/or definitive agreements for the Debt Financing that are within its reasonable control and (iv) upon satisfaction of the conditions set forth in the Debt Commitment Letter and this Agreement, Purchaser consummate the Debt Financing at or prior to Closing.
(c) If any portion of the Debt Financing becomes unavailable, the Buyer shall use its reasonable best efforts to arrange alternative financing from the same or other sources of financing on terms and obtain financing as promptly as practicable from alternative sources conditions (including the flex provisions) no less favorable to the Buyer than those contained in (or expressly permitted with respect to) the Financing Commitments and in an amount sufficient for the Buyer to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s perform its obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as Agreement (it being agreed that, if such alternative financing is not reasonably available to the Financing Buyer on such terms and any commitment related thereto is conditions, the Financing Commitments; providedBuyer may arrange alternative financing on such other terms and conditions as the Buyer may in good ▇▇▇▇▇ ▇▇▇▇ appropriate). Notwithstanding anything herein to the contrary, that Purchaser in no event shall the foregoing require the Buyer to, and the Buyer shall not be required to to, (i) pay any fees materially in excess of those contemplated by the Financing Commitments as in effect on the date hereof or (ii) agree to any terms and or conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser the aggregate than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, terms and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement conditions of the Financing Commitments and fee letters as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain effect on the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliatesdate hereof; provided, howeverfurther, that in no requested cooperation pursuant to this Section 7.05(b) event shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not Buyer be required (A) be required to pay amend or waive any commitment of the terms or other similar fee, conditions hereof or (B) have to consummate the Closing any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other earlier than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsby Section 3.2.
Appears in 1 contract
Financing. (a) Purchaser Buyer 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, proper necessary or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable following the date of this Agreement and to consummate the Debt Financing on the terms Closing Date, including using its reasonable best efforts to:
(i) maintain in effect the Debt Commitment Letter and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit permitting any amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, and not replacing, the Debt Commitment Letter, if such amendment, modification, waiver or replacement: (A) reduces the aggregate amount of the Debt Financing Commitments (except for including by changing the amount of fees to be paid or original issue discount of the Debt Financing) unless the Equity Financing (as reflected in the Equity Commitment Letter, as may be amended) is increased by a corresponding amount or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (1) materially delay or prevent the Closing or (2) adversely impact the ability of Buyer to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto when required pursuant to this Agreement (provided, that Buyer may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements with respect to the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such amendments, modifications or waivers whichadditional parties and amendment of additional terms do not reduce the Debt Financing to be funded at the Closing to less than the aggregate amount committed pursuant to the Debt Commitment Letter as of the date hereof or, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair prevent the availability Closing);
(ii) cause the Equity Financing to be consummated upon satisfaction of the Financing under Conditions contained in the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to Equity Commitment Letter;
(i) maintain in effect the Financing Commitments, (iiiii) satisfy on a timely basis (or obtain prior to the waiver of) Closing Date, all conditions applicable to Purchaser in the Financing Commitments Conditions that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, Buyer’s control;
(iv) consummate negotiate, execute and deliver Debt Financing Documents that reflect the terms contained in, or no less favorable to Buyer in the aggregate than, the Debt Commitment Letter (including any “market flex” provisions related thereto);
(v) in the event that the conditions set forth in Sections 8.01 and 8.02 and the Financing (or a portion thereof) Conditions have been satisfied or, upon funding would be satisfied, cause the Financing Sources to fund the full amount of the Debt Financing at or prior to the Applicable ClosingClosing (or such lesser amount as may be required to consummate the transactions contemplated hereby) (and, for the avoidance of doubt, Buyer acknowledges and agrees that (A) in the event that on the final day of the Marketing Period (x) all or a portion of the Debt Financing structured as high yield debt or contemplated to be sold pursuant to a Rule 144A transaction has not been issued or sold, (vy) all conditions precedent to Buyer’s obligations hereunder shall have been satisfied or waived (other than those conditions which by their nature will not be satisfied until the Closing) and (z) the bridge financing contemplated by the Debt Commitment Letter is available, then on such date Buyer shall borrow under and use the proceeds of the bridge financing to finance, in part, the Closing Date Payments and (B) Buyer shall comply with any “securities demand” or similar provisions included in the Debt Commitment Letter or any related fee letter and use any proceeds from the sale of securities issued thereunder to finance, in part, the Closing Date Payments); and
(vi) enforce its rights under the Financing Commitments Commitment Letters in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and Financing Failure Event.
(vib) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser Buyer shall not be required to agree to terms and conditions that are, keep Parent informed in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Buyer shall give the Sellers Parent prompt notice: (A) upon becoming aware notice of any material breach or default (repudiation, or receipt of a written notice of any event anticipated or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material threatened breach or default) by Purchaserrepudiation, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any the Commitment Letters of which Buyer becomes aware. Without limiting Buyer’s other obligations under this Section 5.15, if a Financing Commitment or any definitive document related to Failure Event occurs, Buyer shall (i) promptly notify Parent of such Financing Failure Event and the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A)reasons therefor, (Bii) or (C) of in consultation with the immediately preceding sentence. Purchaser shall refrain from takingParent and the Sellers, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing (on terms no less favorable to Buyer, taken as promptly as practicable from alternative sources a whole (taking into account any “market flex” provisions, but not in an amount sufficient to replace the Financing as promptly as practicable and without the imposition excess or outside of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are“market flex” provisions unless agreed by Buyer), in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
Debt Commitment Letter) alternative financing from the same or alternative financing sources, in an amount sufficient to make the Closing Date Payments and consummate the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (biii) Prior use its reasonable best efforts to obtain, and when obtained, provide Parent and the Sellers with a copy of, a replacement financing commitment in accordance with Section 5.15(a)(i) that provides for such alternative financing. Notwithstanding anything herein to the Applicable Closingcontrary, in no event shall the Sellers shall use their commercially reasonable best efforts of Buyer be deemed or construed to providerequire Buyer to, and Buyer shall use their commercially reasonable efforts to cause their Affiliates and their respective officersnot be required to, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used pay fees in the preparation aggregate in excess of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing those contemplated by the LendersDebt Commitment Letter, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), or (ii) assist agree to terms that are outside of, or less favorable than, in the preparation of bank information memoranda and similar documents aggregate, any terms set forth in the Debt Commitment Letter or any related fee letter (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use “market flex” provision therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, each of Acquiror and Acquiror Sub 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Letters, and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendmentsLetters; provided, modifications or waivers whichhowever, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of that notwithstanding the foregoing, Purchaser Acquiror shall be entitled to amend or waive any provision of or remedy under the Debt Commitment Letter, or replace it, provided that no such amendment, waiver or replacement may (i) reduce the aggregate amount of the Debt Financing (unless the Ultimate Parent increases its funding commitment under the Equity Commitment Letter by an amount equal to the amount of such reduction subject to receipt of the proceeds of Debt Financing and the satisfaction or waiver of all of the conditions set forth in Section 6.1 and 6.2) or (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing Date, (B) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (C) adversely impact the ability of Acquiror or Acquiror Sub, as applicable, to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto. Each of Acquiror and Acquiror Sub shall use its reasonable best efforts to (i) to maintain in effect the Financing CommitmentsLetters, to execute and deliver the Senior Credit Facilities and the Bridge Facility (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser each as defined in the Financing Commitments that are within its control Debt Commitment Letter) and otherwise comply with its covenants and to negotiate all other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing Debt Commitment Letter on the terms and subject only to conditions (including the conditions contemplated by flex provisions) contained in the Financing CommitmentsDebt Commitment Letter and related fee letters, (ivii) to satisfy all conditions to such definitive agreements and consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (viiii) otherwise cause the Lenders to fund on the Applicable Closing Date comply with its obligations under the Financing (or Letters. Acquiror shall keep the Company informed on a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms reasonably current basis and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Financing and any material developments relating provide to the Company copies of all definitive documents related to the Financing. Without limiting the generality of the foregoing, Purchaser Acquiror and Acquiror Sub shall give the Sellers Company prompt notice: (Ai) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment Letters or definitive document related to the FinancingFinancing of which Acquiror and Acquiror Sub become aware; (Bii) of the receipt of any written notice or other written communication from any Person Financing source with respect to any any: (xA) actual or potential breach, default, termination or repudiation by any party to any the Financing Commitment Letters or any definitive document related to the Financing of or any provisions of any the Financing Commitment Letters or any definitive document related to the Financing or (yB) material dispute or disagreement between or among any parties to any Financing Commitment Letters or any definitive document related to the Financing; and (Ciii) if for any reason Purchaser Acquiror or Acquiror Sub believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments Letters or the definitive documents related to the Financing; provided, that Acquiror and Acquiror Sub shall be under no obligation to disclose any information that is subject to an attorney-client or similar privilege if Acquiror and Acquiror Sub shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege. As soon as reasonably practicable, but in any event within five (5) Business Days after 5 days of the date the Sellers deliver to Purchaser Company delivers Acquiror or Acquiror Sub a written request, Purchaser Acquiror and Acquiror Sub shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (Ai), (Bii) or (Ciii) of the immediately preceding sentence. Purchaser Acquiror and Acquiror Sub shall refrain from takinguse their reasonable best efforts to cause the lenders and any other Persons providing Financing to fund on the Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement if all conditions to closing contained in Article VI are satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, directly but subject to the fulfillment or indirectlywaiver of those conditions). For the avoidance of doubt, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments event that all or any definitive agreement related thereto. If any portion of the Debt Financing becomes unavailable to be obtained through the issuance of Notes as contemplated by the Debt Commitment Letter has not been obtained on or prior to the terms and conditions contemplated in the Financing CommitmentsClosing, Purchaser then Acquiror shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient cause, no later than the Closing, the proceeds of the Bridge Loans contemplated by the Debt Commitment Letter to be used to replace such portion of the Notes not issued at Closing. Acquiror and Acquiror Sub acknowledge and agree that the obtaining of the Financing as promptly as practicable is not a condition to Closing. For the avoidance of doubt, if the Debt Financing has not been obtained, Acquiror and without the imposition of any new or additional conditions and without any adverse amendment Acquiror Sub shall continue to existing conditions be obligated, subject to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and fulfillment or waiver of the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in Article VI, to consummate the Financing CommitmentsMerger and the other transactions contemplated by this Agreement. Notwithstanding anything contained in this Section 5.11 or in any other provision of this Agreement, in no event shall Acquiror or Acquiror Sub be required (i) to amend or waive any of the terms or conditions hereof or (ii) to consummate the Closing any earlier than the final day of the Marketing Period.
(b) Prior to the Applicable ClosingClosing Date, the Sellers Company shall use their its commercially reasonable efforts to provide, provide to Acquiror and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provideAcquiror Sub, at PurchaserAcquiror’s sole cost and expense, all reasonable cooperation reasonably requested by Acquiror in connection with the arrangement of the Financing (including, for the avoidance of doubt, any issuance of the Senior Notes as defined in and contemplated by the Debt Commitment Letter) or any permitted amended or modified financing (collectively with the Financing, the “Available Financing”) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Subsidiaries), including (i) furnishing Acquiror and Acquiror Sub and their Financing sources as promptly as practicable with all financial statements required to be delivered pursuant to clause (vii) (Financial Statements) of Exhibit C of the Debt Commitment Letter, other than pro forma financial statements unless Acquiror or Acquiror Sub has provided the Company information relating to pro forma adjustments at least 30 days prior to the date pro forma financial statements are required to be delivered (without giving effect to any qualification therein with respect to receipt by Acquiror or Acquiror Sub); (ii) furnishing Acquiror and Acquiror Sub and their Financing sources as promptly as practicable with information relating to the Company and the Subsidiaries to the extent reasonably requested by Acquiror to prepare the confidential information memorandum and the lender presentation contemplated by the Debt Commitment Letter (information required pursuant to clause (i) and this clause (ii) being referred to as the “Required Bank Information”), (iii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Available Financing and senior management, with appropriate seniority and expertise, of the Company), presentations, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Available Financing, (iv) using commercially reasonable efforts to obtain accountant’s comfort letters and legal opinions reasonably requested by Acquiror, (v) using commercially reasonable efforts to obtain surveys and title insurance reasonably requested by Acquiror, (vi) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Acquiror to permit the consummation of the Available Financing and to permit the proceeds thereof to be made available to the Surviving Entity at the Closing, (vii) executing and delivering any pledge and security documents, other definitive financing documents or other certificates, and documents as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates Acquiror (including a certificate of the principal chief financial officer of each of the Sellers Company with respect to solvency matters), accounting comfort letters (including matters in the form of Exhibit H attached hereto and consents of accountants for use of their reports in any materials material relating to the Available Financing), (viii) or other documents and instruments relating to guarantees and other matters ancillary providing authorization letters to the Financing as may be reasonably requested sources authorizing the distribution of information to prospective lenders and containing a customary representation to the arranger of the Available Financing that the information contained in the confidential information memorandum contemplated by Purchaserthe Debt Commitment Letter does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and, in the case of the public-side version, containing a representation to the arranger of the Available Financing that such public-side version does not include material non-public information about the Company and the Subsidiaries, (ivix) assist in the preparation of, entering into and, upon reasonable prior notice cooperating reasonably with Acquiror’s Financing sources’ due diligence to the extent related reasonable and to the participation extent not unreasonably interfering with the business of the Company; (x) using its commercially reasonable efforts to permit any cash and marketable securities of the Company and the Subsidiaries that can, without violating Law or incurring material Taxes, reasonably be made available to pay a portion of the aggregate Total Consideration to be made available for that purpose at the Closing (it being understood that the Company has not made any representations about how much that cash and marketable securities will be), (xi) assisting in meetings, presentations, drafting sessions or similar activities, syndication (A) the preparation of and entering into one or more credit agreementsagreements or purchase agreements or other agreements on the terms contemplated by the Debt Commitment Letter or, note purchase agreementsif applicable, indentureson the terms contemplated by the Available Financing, and currency or interest hedging agreements as reasonably requested by Acquiror or other agreements, including by refraining from entering into Acquiror Sub or (B) the amendment of any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation Company’s or the Subsidiaries’ currency or interest hedging agreements on terms reasonably requested by Acquiror or Acquiror Sub; provided that no obligation of the Company or any of the Subsidiaries under any such agreements or amendments shall be effective until the Closing, and assistance, (vixii) cooperate reasonably assisting with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships preparation of the Sellers confidential information memorandum, the lender presentation and their Affiliatesone rating agency presentation for each of ▇▇▇▇▇’▇ Investor Services and Standard & Poor’s Ratings Group, a division of the McGraw Hill Corporation; provided, however, provided that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) any confidential information memorandum and the lender presentation need not be issued by the Company or any of the Subsidiaries and (B) any confidential information memorandum and the lender presentation shall contain disclosure reflecting the Surviving Corporation and/or the Subsidiaries as the obligor. Notwithstanding the foregoing, (A) no obligation of the Company or any of the Subsidiaries under any certificate, document or instrument (other than the authorization letters referred to above) shall be effective until the Closing Date and (B) none of the Company or any of the Subsidiaries shall be required to bear any cost or expense or to pay any commitment or other similar fee, (B) have fee in connection with the Available Financing prior to the Closing Date. The Company hereby consents to the use of its and the Subsidiaries’ logos in connection with the Available Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any Liability under of the Subsidiaries or the reputation or goodwill of the Company or any credit agreement, note purchase agreement, indenture, hedging agreement of the Subsidiaries. All non-public or other agreement confidential information provided by the Company or document related any of its Representatives pursuant to this Section 5.11(b) shall be kept confidential, except that Acquiror and Acquiror Sub shall be permitted to disclose such information to potential sources of capital and to rating agencies and prospective lenders and investors during syndication of the Available Financing subject to the Financingpotential sources of capital, or (C) incur any prospective lenders and investors entering into customary confidentiality undertakings with respect to such information, with the Company being a beneficiary of such confidentiality undertakings. Acquiror shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket expense unless such expense is advanced costs and expenses (including reasonable attorneys’ fees) incurred by the Company or simultaneously reimbursed any of the Subsidiaries in connection with the cooperation of the Company and the Subsidiaries contemplated by Purchaser (without set-off). Purchaser shallthis Section 5.11, without the right of set-off, and shall indemnify and hold harmless Sellers the Company, the Subsidiaries and their respective subsidiaries and Representatives from and against any and all Losses losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with (1) of any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or type in connection with the arrangement of the any Available Financing or (2) and any information utilized used in connection therewith therewith.
(other than information relation to Sellers approved by Sellers for use therein). This indemnification c) The Company shall survive termination of this Agreement. All material, non-public information regarding Sellers furnish Acquiror and Acquiror Sub and their Affiliates provided Financing sources as promptly as practicable with all financial and other pertinent information with respect to Purchaser or its Representative pursuant the Company and the Subsidiaries as may be reasonably requested by Acquiror in order to this Section 7.05(bprepare the offering memorandum and private placement memorandum referred to in clause (x) shall be kept confidential in Exhibit C to the Debt Commitment Letter in order to consummate the offering of the Senior Notes contemplated by them the Debt Commitment Letter in accordance with the Confidentiality Agreementterms of the Debt Commitment Letter on the Closing Date, except including all financial statements and financial data (provided that in the case of pro forma financial statements all information related to pro forma adjustments shall have been provided by Acquiror or Acquiror Sub at least 30 days prior to when pro forma financial statements are required to be provided) that are customarily included in a preliminary offering memorandum for disclosure a high-yield debt securities offering (including all financial data that would be reasonably required to potential investors enable the independent registered public accountants of the Company and the Subsidiaries to render a customary “comfort letter” (including customary “negative assurances”)) (information required pursuant to this clause being referred to as required the “Required Notes Information”; provided, that if the Company shall in good faith reasonably believe it has delivered the Required Notes Information, it may deliver to Acquiror a written notice to that effect (stating when it believes it completed such delivery), in which case the Required Notes Information shall be deemed to have been delivered on the date of such notice unless Acquiror in good faith reasonably believes the Company has not completed delivery of the Required Notes Information and, within four (4) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with specificity which Required Notes Information the Company has not been delivered.)
(d) Subject to applicable Law, the Company shall use commercially reasonable efforts, upon the reasonable request of Acquiror Sub, to take any action reasonably requested by Acquiror Sub in connection with its strategic planning; provided, however, that (i) the Financing Company shall not be required to take any action in contravention of any organizational document or other Contract relating to it or any of the Subsidiaries, (ii) any such actions or transactions shall be conditioned upon the Closing occurring, (iii) any and all such actions shall not constitute a breach by the Company of any representation, warranty or covenant made by the Company pursuant to this Agreement, (iv) no such actions shall subject to customary confidentially protections.the Company, any of the S
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cablevision Systems Corp /Ny)
Financing. (a) Purchaser Parent 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only conditions described in the Financing Commitments or terms that would not adversely impact the ability of Parent or Merger Sub to timely consummate the transactions contemplated hereby, including using its reasonable best efforts (i) to maintain in effect the Financing Commitments and to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments (or other terms that would not adversely impact the ability of Parent or Merger Sub to timely consummate the transactions contemplated hereby), (ii) to satisfy all conditions applicable to Parent in such definitive agreements and consummate the Financing at or prior to the Closing, (iii) to comply with its obligations under the Financing Commitments and (iv) to enforce its rights under the Financing Commitments. Purchaser Parent shall give the Company prompt notice upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements). In connection with its obligations under this Section 5.9, Parent shall be permitted to amend, modify or replace the Debt Commitment Letters with new Debt Commitment Letters (the “New Financing Commitments”), provided that Parent shall not permit any replacement of, or amendment or modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Debt Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as Letter if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; providedreplacement, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that areamendment, in the aggregatemodification, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing waiver or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with remedy (1) any action taken by them at reduces the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement aggregate amount of the Debt Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as below that amount required in connection with the Financing subject to customary confidentially protections.to
Appears in 1 contract
Financing. (a)
(i) Subject to the terms and conditions of this Agreement, Purchaser shall, and shall cause its affiliates to, use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing on terms and conditions (including the “market flex” provisions) no less favorable to Purchaser than the terms contained in the Commitment Letter and the Fee Letter as promptly as reasonably practicable on (taking into account the terms anticipated timing of the Marketing Period) and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacement of the Debt Commitment Letter if such amendment, modification, or replacement of the Debt Commitment Letter, (I) reduces (or could have the effect of reducing) the aggregate amount of the Financing Commitments (except including by increasing the amount of fees to be paid or original issue discount), in a manner that would cause the representation set forth in Section 4.05(c) to be incorrect, (II) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing or (III) would otherwise reasonably be expected to (w) prevent, materially delay or impair the Closing, (x) make the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date less likely to occur, (y) materially adversely impact the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or (z) materially adversely impact the ability of Purchaser to consummate the transactions contemplated hereby; provided that for any the avoidance of doubt, Purchaser may amend, supplement, modify or replace the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities, so long as such amendments, modifications or waivers which, individually or in the aggregate, action would not reasonably be reasonably expected to prevent, materially delay or impair the Closing or impair the availability of the Debt Financing under and the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall terms are not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable less beneficial to Purchaser in the Financing Commitments that are within and its control and otherwise comply with its covenants and other obligations thereunderaffiliates, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to conditionality or enforcement, than those in the Financing Commitment Letter as in effect on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All materialPurchaser shall promptly deliver to UCB copies of any such amendment, non-public information regarding Sellers and their Affiliates provided to Purchaser modification or its Representative pursuant to replacement. For purposes of this Section 7.05(b5.13 and Sections 4.05 and 4.06 hereof, references to “Financing” shall include the financing contemplated by the Commitment Letters (including any alternate financing arranged in compliance herewith) as permitted to be amended, modified or replaced by this Section 5.13(a), and references to “Debt Commitment Letter” shall include such documents as permitted to be kept confidential amended, modified or replaced by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsthis Section 5.13(a).
Appears in 1 contract
Financing. (a) Purchaser Parent shall use its reasonable best efforts to take, take all actions and to do or cause to be taken, all actions and to do, or cause to be done, done all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable proceeds of the Facilities on the terms and subject only to the conditions contained set forth in the Financing CommitmentsFacilities Agreement. Purchaser Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) Facilities Agreement without the prior written consent of PRE if such amendment, modification or waiver (i) reduces the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality aggregate amount of the foregoingFacilities by an amount or (ii) adversely expands, Purchaser amends or modifies any of the conditions precedent to the Facilities in a manner, in each case that would reasonably be expected to prevent or materially delay the ability of Parent to consummate the Closing on the Closing Date.
(b) Parent shall use reasonable best efforts to (i) maintain in effect satisfy (or, if deemed advisable by Parent, seek the Financing Commitments, (iiwaiver of) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments Parent that are within its control and otherwise comply with its covenants and other obligations thereunderas set forth in the Facilities Agreement, (iiiii) negotiate with upon satisfaction of such conditions, cause the Lenders and other third parties and enter into definitive agreements with respect to funding of the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) Facilities at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (viiii) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers PRE prompt notice: notice (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing Facilities Agreement of any provisions of any Financing Commitment or any definitive document related to the Financing which Parent has become aware or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (CB) if for any reason Purchaser Parent no longer believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing Facilities on the terms, terms set forth in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five Facilities Agreement.
(5c) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing Facilities necessary to consummate the Closing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsFacilities Agreement, Purchaser Parent shall promptly notify PRE and shall use its reasonable best efforts to arrange and to obtain alternative financing from alternative sources for such portion as promptly as practicable from alternative sources following such event on terms no less favorable to Parent as to conditionality than those contained in the Facilities Agreement and in an amount sufficient for Parent to replace consummate the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions Closing. If Parent proceeds with such alternative financing, it shall be subject to the Financing, and Purchaser’s same obligations under this Section 7.05(a) shall apply with respect to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
foregoing clauses (a) and (b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters)the Facilities. For the avoidance of doubt, accounting comfort letters (including consents of accountants for use of their reports in any materials relating all references herein to the Financing) or other documents Facilities shall be deemed to include such alternative financing, and instruments relating to guarantees and other matters ancillary all references to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) Facilities Agreement shall be kept confidential by them in accordance with deemed to include the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsdefinitive agreement governing such alternative financing.
Appears in 1 contract
Financing. (a) Purchaser Subject to the terms of this Agreement (including the rights of Parent and Merger Sub in this Section 5.20(a) to obtain Alternative Financing), Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and use reasonable best efforts to do, or cause to be done, all things necessary, proper necessary or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in consummate the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toat the Effective Time, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts to (i) maintain in effect the Financing Commitments, Commitment Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to of the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those precedent set forth in the Financing CommitmentsCommitment Letter. Upon Buyer shall have the reasonable request of the Sellersright from time to time to amend, Purchaser shall inform the Sellers of the status restate, replace, supplement or otherwise modify, or waive any of its efforts to arrange rights under, the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any Commitment Letter and/or substitute other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if debt financing for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing from the same and/or alternative debt financing sources (together with any alternative financing as described in Section 5.20(b) below, each an “Alternative Financing”); provided, that any such (i) amendment, restatement, supplement, replacement or other modification to or waiver of any provision of the Commitment Letter or (ii) Alternative Financing, shall not, without the prior written consent of Holdings, (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount, unless the Financing is increased by a corresponding amount on substantially the terms, same terms as provided in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related applicable Commitment Letter) to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A)be funded at Closing, (B) impose new or additional conditions precedent or contingencies to the Financing as set forth in the Commitment Letter or otherwise amend, modify, or expand any conditions precedent to the funding of the Financing (unless such conditions precedent or contingencies to the Alternative Financing would not be reasonably expected to (x) prevent or delay in any material respect the Closing, or (y) adversely affect, impede or impair in any material respect the ability of Buyer to consummate the transactions contemplated by this Agreement), (C) release or consent to the termination of the immediately preceding sentenceobligations of the lenders under the Commitment Letter (except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Alternative Financing or as otherwise expressly contemplated by the applicable Commitment Letter), or (D) otherwise amend, restate, supplement, replace or modify any Commitment Letter in a manner that would reasonably be expected to prevent or delay in any material respect the ability of the Buyer to consummate the Merger and the transactions contemplated hereby and by the Related Agreements. Purchaser shall refrain from takingNotwithstanding anything to the contrary set forth in any Commitment Letter, directly or indirectly, the borrower under any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. Alternative Financing shall be U.S. HoldCo.
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (other than on account of any Alternative Financing Commitmentsreferred to in Section 5.20(a) above having been completed and other than due to the failure of a condition to the consummation of the Financing resulting from a material breach of any representation, Purchaser warranty, or covenant of Holdings and the Vidara Companies set forth in this Agreement or the failure of any condition set forth in Section 6.1 of this Agreement) and as a result Buyer would reasonably be expected to not have sufficient funds to pay the Estimated Cash Consideration and any other amounts required to be paid by Buyer in connection with the consummation of the transactions contemplated hereby, Buyer shall use its reasonable best efforts to arrange and obtain financing any such portion from alternative debt sources as promptly as practicable from alternative sources following the occurrence of such event in an amount sufficient that will still enable Buyer to replace pay the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing Estimated Cash Consideration and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be other amounts required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation be paid by Buyer in connection with the arrangement consummation of the transactions contemplated hereby.
(c) As applicable based on the nature of the Financing or the Alternative Financing, as the case may be reasonably requested be, Holdings shall cause the Vidara Companies to use reasonable best efforts to cooperate with Buyer (and use reasonable best efforts to cause the independent accounting firm and other advisers retained by Purchaser and that is customary the Vidara Companies to cooperate with Buyer) in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial participating, upon reasonable advance notice, in a reasonable number of meetings, presentations, road shows, rating agency presentations, and other information relating to drafting sessions, and participating in reasonable and customary due diligence, in each case with or by the Sellers to the Lenders Financing Sources (including information to be used or prospective lenders or investors in any Financing) and assisting Buyer in the preparation of an informational package regarding the business, operations, financial projections customary offering documents and prospects of Purchaser materials (including any confidential offering memoranda or circulars and rating agency presentations) and the Business review and Purchased Assets which is customary for such financing or reasonably necessary comment on the definitive documentation for the completion Financing or an Alternative Financing to the extent reasonably requested by Buyer, (ii) using reasonable best efforts to obtain and furnish to Buyer, as promptly as reasonably practicable, with the Required Financial Statements and coordinate with Buyer in the preparation of pro forma historical financial statements, and (iii) using reasonable best efforts to cause its current or former independent accountants (including of predecessor owners of any business) to provide assistance and cooperation in any Financing, including participating in a reasonable number of drafting sessions and accounting due diligence sessions and providing customary “comfort letters” and any necessary written consents to use their audit reports and to be named as “Experts” in any offering documentation relating to any Alternative Financing. In addition, U.S. Holdco shall, and Holdings shall cause U.S. Holdco to, and Holdings shall cause the Vidara Companies (other than U.S. Holdco) to use reasonable best efforts to (A) in the case of U.S. Holdco, incur the indebtedness contemplated by the Financing by or any Alternative Financing, and in the Lenderscase of each Vidara Company, provide customary certificates, opinions and other documents and instruments, and take all necessary corporate action (subject to the performance of Buyer’s obligations pursuant to Section 5.24), to permit the consummation of any Financing and any Alternative Financing and to permit the proceeds thereof to be made available for use in accordance with Schedule 1 at the Effective Time, including, without limitation, executing and delivering prior to the Closing Date (or, in the case of U.S. Holdco, the applicable closing date for any Financing or Alternative Financing), definitive financing documents, including credit agreements, indentures, intercreditor agreements, pledge and security documents, and certificates (including borrowing base and solvency certificates), or other documents, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports Buyer and similar information), (ii) assist in otherwise facilitating the preparation granting or perfection of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the collateral to secure any Financing or Alternative Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) atdelivering certificates representing equity interests constituting collateral, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers authorizing intellectual property filings with respect to solvency mattersintellectual property constituting collateral and executing and delivering, and permitting the filing and registration of, mortgages with respect to owned real property constituting collateral and obtaining releases of existing Liens, (B) furnishing Buyer and any Financing Sources promptly, and in any event at least five (5) days prior to the Closing Date (or if earlier, the closing date for such Financing or Alternative Financing), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees with all documentation and other matters ancillary information required by any Governmental Authority with respect to the any Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreementsunder applicable “know your customer” and anti-money laundering rules and regulations, including by refraining from entering into any competing financing transactionsthe PATRIOT Act, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligencein each case, to the extent customary that such documentation and reasonableinformation has been reasonably requested in writing (which may be by e-mail) at least ten (10) days prior to the Closing Date (or such earlier date if applicable), and (C) assisting in the delivery of inventory appraisals and field audits and obtaining surveys and title insurance and real property surveys reasonably requested by Buyer. Notwithstanding anything in this Agreement to the contrary, (viix) refrain from pursuing neither Holdings nor any financing transactions Vidara Company or any of their Representatives shall be required to take any action under this Section 5.20 that may delay, impede would interfere unreasonably with the business or otherwise adversely affect operations of the Financing Vidara Companies and (viiiy) assist Purchaser neither Holdings nor any of the Vidara Companies shall be required to take any action that will conflict with or violate their respective organizational documents or result in the contravention of any contract to which Holdings or the Vidara Companies is a party that is material to the business of Vidara and the Lenders Holding Companies, taken as a whole, prior to benefit from the existing lending relationships of the Sellers and their Affiliates; providedEffective Time (it being agreed, however, that no requested cooperation pursuant the foregoing sub-clause (x) shall not apply to (and shall not in any manner affect) Holding’s obligations hereunder with respect to the delivery of the Required Financial Information, with respect to the other actions under this Section 7.05(b5.20(c) shall delay the Applicable Closing, that are usual and customary with respect to senior secured term loans or unreasonably interfere with the ongoing operations of Sellers high yield debt financings and the Sellers shall not incurrence of debt thereunder or therewith and the Vidara Companies’ obligations under sub-clause (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-offextent necessary to ensure the consummation of the Financing to permit the proceeds thereof to be made available for use in accordance with Schedule 1). Purchaser shall, without Holdings consents to the right reasonable use of set-off, the Holdings’ and the Vidara Companies’ logos in connection with the arrangement of any Alternative Financing in a manner customary for financing transactions.
(d) Buyer shall indemnify and hold harmless Sellers Holdings, each Vidara Company, its Subsidiaries, their Affiliates and their respective subsidiaries members, directors, officers, employees, attorneys, accountants and Representatives from other advisors or representatives for and against any and all Losses liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with (1) the arrangement of the Financing, any action taken Alternative Financing and the performance of their respective obligations under Section 5.20(c), other than to the extent any of the foregoing arise from the willful misconduct or gross negligence of any Vidara Company or its or their respective directors, officers, employees, attorneys, accountants or other advisors or representatives. Buyer shall, promptly upon request by them at Holdings, reimburse Holdings and the request Vidara Companies for all reasonable out of Purchaser pursuant to this Section 7.05(b) pocket costs incurred by Holdings or any of the Vidara Companies in connection with the arrangement cooperation required by Section 5.20(c) and Buyer shall, promptly upon written request by Holdings, reimburse U.S. HoldCo for any accrued interest, debt discount and prepayment or redemption premiums incurred by U.S. HoldCo in respect of any Financing or Alternative Financing to the extent such Financing or Alternative Financing is consummated prior to the Closing and this Agreement is terminated pursuant to Section 8.1 (provided that no such reimbursement shall be required to the extent the Closing occurs). For the avoidance of doubt, Buyer shall bear and be responsible for, and/or promptly upon request by Holdings, reimburse Holdings and the Vidara Companies for, and the Holdings’ Transaction Expenses shall not include, the reasonable out-of-pocket costs incurred to provide the Required Financial Information, including preparation and audit tests, reasonable and documented expenses payable to InterMune’s and/or to InterMune’s independent accountants with respect to the preparation of the Financing Required Financial Information.
(e) With respect to any outstanding indebtedness of any of the Vidara Companies set forth on Section 5.20(e) of the Vidara Disclosure Schedules, (i) Holdings shall, or shall have caused the Vidara Companies to, deliver all notices and take other actions required to facilitate the termination of commitments in respect of such indebtedness, repayment in full of all obligations in respect of such indebtedness and release of any Liens and guarantees in connection therewith on the Closing Date and (ii) no later than three (3) Business Days prior to the Closing Date, Holdings shall, or shall have caused the Vidara Companies to, furnish to Buyer customary payoff letters with respect to such indebtedness (each, a “Payoff Letter”) in substantially final form and in form and substance reasonably satisfactory to Buyer from all financial institutions and other Persons to which such indebtedness is owed, or the applicable agent, trustee or other representative on behalf of such Persons, which Payoff Letters shall (A) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or other outstanding and unpaid obligations related to such indebtedness as of the Closing Date (the “Payoff Amount”) and (B) state that all obligations (including guarantees) in respect thereof and Liens in connection therewith on the assets of the Vidara Companies or otherwise on the business of the Vidara Companies shall be, substantially concurrently with the receipt of the Payoff Amount on the Closing Date by the Persons holding such indebtedness, released or arrangements reasonably satisfactory to Buyer for such release shall have been made by such time, subject, as applicable, to the replacement (or cash collateralization or backstopping) of any then outstanding letters of credit or similar indebtedness.
(f) Vidara shall, and Holdings shall cause Vidara to, cooperate with Buyer to (i) enter into, and Vidara shall enter into, a supplemental indenture to the Convertible Notes Indenture prior to or at the Effective Time, which supplemental indenture shall comply with the requirements specified in Section 14.07 of the Convertible Notes Indenture (such supplemental indenture, the “Supplemental Indenture”), and (ii) effect the delivery of officers’ certificates and opinions of counsel required under the Convertible Notes Indenture or otherwise requested by the trustee thereunder, and to the extent any such certificates or opinions are required to be delivered by officers of Vidara or counsel to Vidara, Vidara shall, and Holdings shall cause Vidara to, use reasonable best efforts to cause such officers or counsel to deliver such certificates and opinions.
(g) Prior to the conversion of Vidara to a public limited company and subject to the performance of the Buyer’s obligations under Section 5.24, each of Vidara and Holdings shall, to the extent necessary, comply with the provisions of section 60 of the Irish Companies ▇▇▇ ▇▇▇▇, and in particular shall undertake the procedure specified in subsections (2) any information utilized to (11) of the section 60 of the Irish Companies ▇▇▇ ▇▇▇▇, so as to enable Vidara to enter into the supplemental indenture in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance compliance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsIrish Law.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Merger (Horizon Pharma, Inc.)
Financing. (a) At the Anadarko Closing (whether in a Separate Closing or as part of a Dual Closing) and, if applicable, the [redacted] Closing (whether in a Separate Closing or as part of a Dual Closing), the Preferred Unit Purchaser shall use will have all funds necessary for its reasonable best efforts payment of the Preferred Unit Anadarko Funding Amount at the Anadarko Closing (whether in a Separate Closing or as part of a Dual Closing) and the Preferred Unit [redacted] Funding Amount at the [redacted] Closing (whether in a Separate Closing or as part of a Dual Closing), in each case in accordance with this Agreement, and for all other actions necessary for GSO Associates and the Preferred Unit Purchaser to take, or cause to be taken, all actions consummate the transactions contemplated in this Agreement and to doperform its obligations hereunder. Each of GSO Associates and the Preferred Unit Purchaser understands that its obligations to consummate the transactions contemplated by this Agreement (including the payment of all amounts when due) are not subject to the availability to GSO Associates or the Preferred Unit Purchaser of any financing or funding.
(b) At the Effective Date, the Preferred Unit Purchaser delivered to SN and the Partnership a true, complete and correct copy of each of the executed Equity Commitment Letters pursuant to which the applicable investor party or cause to be doneparties thereto has or have committed, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained set forth therein, to invest in Preferred Unit Purchaser the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments cash amount set forth therein.
(except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability c) Neither of the Financing under Equity Commitment Letters has been modified or amended and no modification or amendment is contemplated, and the Financing Commitments commitment thereunder has not been terminated, reduced, withdrawn or rescinded in any respect and no such termination, reduction, withdrawal or recession is contemplated. There are no side letters or other Contracts or arrangements related to the consummation funding therein that contradicts or reduces the obligations of the Transactions) without the prior written consent Affiliates of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts GSO thereunder to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect perform subject to the Financing conditions and on the terms set forth therein. Each of the Equity Commitment Letters is in full force and subject only effect and is the legal, valid, binding and enforceable obligations of Preferred Unit Purchaser and each of the other parties thereto, as the case may be. There are no conditions precedent or other contingencies related to the conditions contemplated by funding of the Financing Commitments, (iv) consummate the Financing full amount (or a portion thereofany portion) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those except as set forth in the Financing CommitmentsEquity Commitment Letters and this Agreement. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any No event or circumstance thathas occurred which, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material constitute a default or breach on the part of Preferred Unit Purchaser or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) thereto under either of the receipt Equity Commitment Letters. The Preferred Unit Purchaser has not incurred any obligation, commitment, restriction or other liability of any written notice kind, and is not contemplating or aware of any obligation, commitment, restriction or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing liability of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the termskind, in the manner either case which would impair or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect such resources, funds or capabilities. The Equity Commitment Letters designate SN as an intended third party beneficiary thereof who may enforce the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships rights of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Preferred Unit Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreementsuch Equity Commitment Letter as if each SN was a party thereto. All materialcommitments and other fees, non-public information regarding Sellers and their Affiliates provided if any, required to Purchaser or its Representative pursuant be paid under the Equity Commitment Letters prior to this Section 7.05(b) shall be kept confidential by them the Effective Date have been paid in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsfull.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sanchez Energy Corp)
Financing. (a) Purchaser Unless, and to the extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital market or other financing transaction) available to satisfy their obligations under this Agreement, from and after the execution of this Agreement, Parent and Merger Sub shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Commitment Letter (including any “market flex” provisions applicable thereto) and shall not permit any amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Commitment Letter, if such amendment, modification, replacement or waiver (i) reduces the aggregate amount of the Financing Commitments (including by changing the amount of fees to be paid or original issue discount except for by operation of the “market flex” provisions) or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of any portion of the Financing in a manner that would or would reasonably be expected to (A) materially delay or prevent the Closing, (B) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (C) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce their rights against other parties to the Commitment Letter or the Definitive Agreements (as defined below), in any material respect, including any right to seek specific performance of the Commitment Letter or the Definitive Agreements. Subject to the limitations set out in the first sentence of this Section 5.15(a), Parent and Merger Sub may amend, supplement, modify or replace the Commitment Letter as in effect at the date of this Agreement (1) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement, (2) to increase the amount of indebtedness and (3) to replace all or a portion of the facility committed under the Commitment Letter as in effect as of the date of this Agreement with one or more new facilities under such Commitment Letter or under any new commitment letter or facility (any such new commitment or facility, a “Replacement Facility”); provided, that any amendments, modifications or waivers which, individually or replacements of any Replacement Facility shall be subject to the same limitations that apply to the Commitment Letter as set forth in the aggregatefirst sentence of this Section 5.15(a). For purposes of this Agreement (other than with respect to any representations made by Parent or Merger Sub), would not (x) the term “Financing” shall be reasonably expected deemed to preventinclude the financing contemplated by the Commitment Letter as permitted to be amended, delay modified or impair replaced pursuant to this Section 5.15 (including any Replacement Facility, any Alternative Financing (as defined below) and, in the availability case of Section 5.15(e), any offering of debt or equity securities the proceeds of which are intended to be used to satisfy the obligations under this Agreement), and (y) the term “Commitment Letter” shall be deemed to include the Commitment Letter as may be permitted to be amended, modified or replaced pursuant to this Section 5.15 and any commitment letters with respect to any Replacement Facility and the Alternative Financing and any related fee letters.
(b) Unless, and to the extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital market or other financing transaction) available to satisfy their obligations under the Financing Commitments this Agreement, each of Parent or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser Merger Sub shall use their reasonable best efforts to (i) maintain in effect the Financing CommitmentsCommitment Letter pursuant to its terms (except for amendments not prohibited by Section 5.15(a)) until the transactions contemplated by this Agreement, including the Merger, are consummated, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including any “market flex” provisions applicable thereto) contained in the Commitment Letter (“Definitive Agreements”) or on other terms not materially less favorable to Parent and Merger Sub, in the aggregate, than the terms and conditions (including any “market flex” provisions applicable thereto) contained in the Commitment Letter, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions to funding in the Commitment Letter applicable to Purchaser in the Financing Commitments Parent or Merger Sub that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, Closing in accordance with the terms and conditions of the Commitment Letter at or prior to the Closing and (viv) enforce its their rights under the Financing Commitments Commitment Letter in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at contemplated by this Agreement, including the Applicable Merger, on the Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in Date by the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Sources.
(c) Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall give the Sellers Company reasonably prompt notice: (Ai) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or party to the Knowledge of Purchaser, any other party to any Financing Commitment Letter or definitive document related to the FinancingFinancing of which they become aware; (Bii) of the receipt of any oral or written notice or other oral or written communication from any Person Financing Source with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing the Commitment Letter or any definitive document related to the Financing of any provisions of any Financing the Commitment Letter or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (Ciii) if for any reason Purchaser believes Parent or Merger Sub believe in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it they will not be able to obtain all or any portion of the Financing on required to consummate the termstransactions contemplated by this Agreement, including the Merger.
(d) Unless, and to the extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital market or other financing transaction) available to satisfy their obligations under this Agreement, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsCommitment Letter, Purchaser Parent and Merger Sub shall use its their respective reasonable best efforts to arrange and obtain financing to, as promptly as practicable practicable, arrange alternative debt financing from the same or alternative sources in an amount sufficient to replace consummate the Financing as promptly as practicable and without transactions contemplated by this Agreement, including the imposition Merger (the “Alternative Financing”), following the occurrence of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitmentsevent; provided, however, that Purchaser Parent shall not be required to agree to obtain financing which includes terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable (taking into account any “market flex” provisions) to Parent and Merger Sub, in any material respect each case relative to Purchaser than those set forth in the Financing Commitmentsbeing replaced.
(be) Prior to the Applicable Closing, the Sellers The Company shall use their commercially reasonable efforts efforts, shall cause its Subsidiaries to provideuse commercially reasonable efforts, and shall use their commercially reasonable efforts to cause their Affiliates its and their respective officers, directors, employees and agents Representatives to provide, at PurchaserParent’s sole cost and expense, on a timely basis in each case, all reasonable cooperation requested by Parent in connection with (x) the arrangement of Financing to be incurred in connection with the arrangement transactions contemplated by this Agreement, including the Merger, and (y) Refinancing Transactions, including, in the case of both (x) and (y):
(i) promptly providing the Financing Sources and/or Refinancing Sources and their respective agents with all financial statements, pro forma financial statements and other information regarding the Company and its Subsidiaries required to be delivered pursuant to Exhibit D of the Financing Commitment Letter or is otherwise necessary to satisfy the conditions thereof (the information required to be delivered pursuant to this clause (i) and the letters referred to in clause (ix) below, the “Required Information”);
(ii) promptly providing all other information as may be reasonably requested by Purchaser Parent, the Financing Sources or Refinancing Sources or their respective agents to prepare customary bank information memoranda, lender presentations, offering memoranda, private placement memoranda (including under Rule 144A under the Securities Act), registration statements and that is customary prospectuses under the Securities Act in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, and/or Refinancing Transaction;
(iii) cause participating (including by making members of senior management with appropriate seniority and expertise available to participate) in a reasonable number of meetings, due diligence sessions, presentations, “road shows”, drafting sessions and sessions with the Sellers rating agencies in connection with the Financing and their Affiliates to execute and deliver Refinancing Transactions;
(and use commercially reasonable efforts to obtain from iv) reasonably cooperating with the SellersFinancing Sources’ and/or Refinancing Sources’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lendersrespective agents’ due diligence, to the extent customary not unreasonably interfering with the business of the Company, including access to documentation reasonably requested by Persons in connection with capital markets transactions;
(v) reasonably cooperating with the marketing efforts for any portion of the Financing and reasonableRefinancing Transactions;
(vi) reasonably cooperating with Parent’s preparation of bank information memoranda, prospectuses and similar documents, rating agency presentations, road show presentations and written offering materials used to complete such Financing or Refinancing Transaction, to the extent information contained therein relates to the business, financial performance or financial condition of the Company and its Subsidiaries, including reasonable assistance in the preparation of pro forma financial statements by Parent and/or Merger Sub; provided, that it is understood that assumptions underlying the pro forma adjustments to be made are the responsibility of Parent and/or Merger Sub;
(vii) refrain from pursuing any financing transactions using commercially reasonable efforts to cause its certified independent auditors to provide (A) consent to the inclusion or incorporation in SEC filings and offering memoranda of the Company’s consolidated financial information (with such changes as the Company and its auditors deem necessary or appropriate) and their reports thereon, in each case, to the extent such consent is required by law, regulation or customary market practice in connection with an underwritten offering of securities of Parent, (B) auditors reports and comfort letters with respect to financial information relating to the Company and its Subsidiaries in customary form, (C) reasonable assistance in the preparation of pro forma financial statements by Parent and/or Merger Sub, provided, that may delay, impede it is understood that assumptions underlying the pro forma adjustments to be made are the responsibility of Parent and/or Merger Sub and (D) other documentation to the extent such other documentation is required or otherwise adversely affect the Financing and customary;
(viii) assist Purchaser furnishing all documentation and other information required by Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, but in each case, solely as relating to the Company and its Subsidiaries;
(ix) issuing customary letters to the Financing Sources and/or Refinancing Sources authorizing the distribution of information to prospective lenders and making customary representations to the Financing Sources and/or Refinancing Sources that such information does not contain a material misstatement or omission and, if requested, confirming that such information does not contain material non-public information with respect to the Company or its Affiliates or any of its or their respective securities for purposes of any applicable securities Laws;
(x) providing customary certificates, legal opinions or other customary closing documents as may be reasonably requested by Parent and/or Merger Sub or their respective Financing Sources or Refinancing Sources;
(xi) assisting with the pledging of, and the Lenders granting and perfection of security interests in, collateral contemplated by the Financing; and
(xii) arranging for customary payoff letters, lien terminations and instruments of discharge to benefit from be delivered at Closing providing for the existing lending relationships payoff, discharge and termination on the Closing Date of all indebtedness of the Sellers Company and their Affiliatesits Subsidiaries contemplated by the Commitment Letter to be paid off, discharged and terminated on the Closing Date; provided, that no obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument related to the Financing (other than the authorization letters referred to in clause (ix) above) shall be effective until the Closing.
(f) All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 5.15 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub may disclose such information to potential financing sources and to rating agencies during the syndication and marketing of the Financing or Refinancing Transactions subject to customary confidentiality undertakings by such potential financing sources or rating agencies. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing or Refinancing Transactions; provided, however, that no requested cooperation pursuant such logos are used solely in a manner that is not intended to this Section 7.05(b) or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. Parent and Merger Sub shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, promptly indemnify and hold harmless Sellers the Company, its Subsidiaries and their respective subsidiaries and Representatives from and against any and all Losses suffered or (1) costs and expenses incurred by them in connection with (1) any action taken by them at the request of Purchaser their cooperation pursuant to this Section 7.05(b5.15 and (2) Claims asserted by Financing Sources or Refinancing Sources in connection with the arrangement of the Financing or (2) Refinancing Transactions and any information utilized used in connection therewith (other than information relation relating to Sellers approved by Sellers for use therein). This the Company or its Subsidiaries provided to Parent in writing on or behalf of the Company, its Subsidiaries or its and their Representatives) except in the event such Claim arose out of or result from the willful misconduct, gross negligence, fraud, or intentional misrepresentation of the Company, its Subsidiaries or any of their respective Representatives; the foregoing indemnification shall survive termination of this Agreement.
(g) Notwithstanding the obligations of the Company under Section 5.15(e), neither the obtaining of the Financing, any Alternative Financing or Refinancing Transaction, nor the completion of any issuance of securities contemplated by the Financing, is a condition to the Closing. All materialFor the avoidance of doubt, non-public if the Company has made commercially reasonable efforts to provide the cooperation, documents and information regarding Sellers contemplated by Section 5.15(e) and their Affiliates provided Section 5.16, the Company’s failure to Purchaser provide all items contemplated thereby shall not affect its rights or its Representative pursuant privileges under this Agreement (or be construed as a waiver of any such rights or privileges), including the Company’s right to this specific enforcement set forth in Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections8.13.
Appears in 1 contract
Financing. (a) Purchaser Parent 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Finance Documents, and Parent shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), permit any amendment or modification to be made to, or any waiver of any provision or remedy be granted under, the Finance Documents, except that, without the prior consent of the Company, Parent may amend the Finance Documents to: (i) amend pricing terms (including pursuant to any “market flex” provisions contained in any side letter); (ii) replace or add lenders, arrangers, underwriters, book-runners, agents or similar entities; or (iii) make any other changes that do not (A) reduce (or could have the effect of reducing) the aggregate amount of any portion of the Financing, if such reduction would reduce the aggregate amount of Financing Commitments below the amount required, when taken together with all other sources of funding available for payment thereof, to pay the aggregate Merger Consideration on the Closing Date (except for any such amendments, modifications or waivers which, individually or subject to the provisions in the aggregatefinal sentence of this Section 8.07(a)), would not be reasonably expected (B) impose new or additional conditions precedent to prevent, delay or impair the availability of the Financing under or otherwise expand, amend or modify any of the Financing Commitments Conditions in a manner that could reasonably be expected to delay or prevent or make less likely to occur the consummation funding of the Transactions) without the prior written consent Financing (or satisfaction of the SellersFinancing Conditions) on the Closing Date or (C) adversely impact the ability of Parent to enforce its rights against other parties to the Finance Documents. For purposes of Section 5.06, which consent Section 8.06 and this Section 8.07, references to “Financing” shall not include the Financing contemplated by the Finance Documents as it may be unreasonably withheldamended, conditioned modified or delayedreplaced in accordance with this Section 8.07(a), and references to “Finance Documents” shall include such documents as they may be amended, modified or replaced in accordance with this Section 8.07(a). Without limiting Notwithstanding anything to the generality contrary contained in this Agreement, Parent and Merger Sub shall have the right to replace all or any portion of the foregoingFinancing contemplated by the Finance Documents with any other debt or equity financing, Purchaser from the same or any alternative financing sources, so long as such substitute financing would not impose new, revised or additional conditions precedent to the availability of such financing relative to the Financing in a manner that would reasonably be expected to delay or prevent or make less likely to occur the funding of such financing relative to the Financing or otherwise adversely impact the ability of Parent and Merger Sub to consummate the transactions contemplated by this Agreement on the Closing Date.
(b) Parent shall use its reasonable best efforts to (i) maintain in effect the Financing Commitments, Finance Documents and (ii) satisfy on a timely basis (or obtain the waiver of), on a timely basis, all Financing Conditions (not including any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish any information described in Section 8.06(a)) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunderParent’s control, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect so as to consummate the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, Closing Date.
(vc) enforce its rights under Parent shall give the Financing Commitments in Company notice as soon as reasonably practicable following the event occurrence of a breach or other failure to fund by a Lender Financing Adverse Event; provided that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser Parent shall not be required to agree to terms and conditions that are, provide any such notice or additional information in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating connection with such notice to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach extent disclosure would be prohibited under applicable Law or default (or any event or circumstance that, with or without notice, lapse of time or both, such disclosure could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge result in a waiver of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain attorney-client privilege. If all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on as a result of a Financing Adverse Event, and such portion is required, when taken together with all other sources of funding available for payment thereof, to pay the terms and conditions contemplated in the Financing Commitmentsaggregate Merger Consideration, Purchaser then Parent shall use its reasonable best efforts to arrange and obtain financing in replacement thereof, as promptly as practicable reasonably practicable, alternative debt financing from alternative sources in an amount sufficient to replace the sufficient, when taken together with available cash of Parent and any then-available Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions pursuant to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the LendersFinance Documents, to consummate the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsMerger.
Appears in 1 contract
Financing. (a) Purchaser Parent 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, proper or advisable necessary to arrange and obtain consummate the Financing as promptly as reasonably practicable on or before the Closing Date on the terms and subject only to the conditions described in the Financing Commitment (including any “flex” provisions applicable to the Financing Commitment (as amended, restated, amended and restated, supplemented, replaced, terminated, reduced, waived or otherwise modified in a manner not in violation of Section 7.13(b)), including by using reasonable best efforts to: (i) comply with, maintain in effect and enforce the Financing Commitment in accordance with the terms and subject to the conditions thereof, in each case until the funding of the Financing at or prior to Closing, and, once entered into, any Financing Agreement with respect thereto; (ii) negotiate Financing Agreements with respect to the Financing on the terms and subject to the conditions contained in the Financing Commitments. Purchaser shall Commitment (including any “flex” provisions) or on other terms reasonably acceptable to Parent and not permit any amendment or modification to be made to, or any waiver in violation of any provision or remedy under, the Financing Commitments Section 7.13(b); and (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (iiiii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser the Financing in the Financing Commitments that are within its control Commitment and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements any Financing Agreements with respect thereto, in each case, to the Financing on extent within the control of Parent.
(b) Subject to the terms and subject only conditions of this Agreement, Parent shall not agree to the conditions contemplated by the Financing Commitmentsor permit any amendment, (iv) consummate the Financing (supplement or a portion thereof) at other modification or prior to the Applicable Closingreplacement of, (v) enforce its rights or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Financing Commitments in the event of a breach or Commitment (other failure than to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those effect any “flex” provisions set forth in the Financing Commitments. Upon Commitment), in each case, without the reasonable request prior written consent of the SellersCompany if (and only if) such amendment, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoingsupplement, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach modification, replacement, termination, or default (waiver would or any event or circumstance that, with or without notice, lapse of time or both, could would reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-reduce the net cash proceeds available financial and from the Financing such that the Parent would not have sufficient cash proceeds to consummate the Combination (taking into account other information relating to the Sellers to the Lenders sources of funding (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion other than cash of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports Company and similar informationits Subsidiaries)), (ii) assist in impose new or additional conditions or otherwise expand, amend or modify any condition precedent to the preparation receipt of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, in each case, in a manner that would reasonably be expected to (A) materially delay or prevent the Closing, or (B) make the timely funding of the Financing or the satisfaction of the conditions to obtaining the Financing materially less likely to occur, or (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports adversely impact in any materials relating material respect the ability of Parent to enforce its or their rights against the Financing) or other documents and instruments relating to guarantees and other matters ancillary parties to the Financing as Commitment; it being understood that notwithstanding the foregoing, Parent may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at replace, amend, supplement, or modify or consent to the request replacement, amendment, supplement or modification of Purchaser pursuant the Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Financing Commitment as of the date of this Section 7.05(bAgreement, and/or (2) make or permit assignments and replacements of an individual lender under the Financing Commitment in connection with the arrangement syndication of the Financing Financing; provided that Parent may, without the Company’s prior written consent: (i) enter into any amendment, replacement, supplement or (2) any information utilized in connection therewith (other than information relation modification to Sellers approved by Sellers for use therein). This indemnification shall survive termination or waiver of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.any
Appears in 1 contract
Sources: Merger Agreement (Zynga Inc)
Financing. (a) Purchaser shall not, without the prior written consent of Seller, agree to, or permit any withdrawal, rescindment, amendment, replacement, supplement or modification to be made to, or any waiver of any provision or remedy pursuant to or consent under, (x) the Equity Financing Letter (other than to increase the amount of Equity Financing available thereunder) or (y) the Debt Commitment Letters if such withdrawal, rescindment, amendment, replacement, supplement, modification or waiver would (i) reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing below the amount necessary to satisfy the Required Amount (after taking into account the amount of the Equity Financing and available cash of the Business) unless the Equity Financing is increased by a corresponding amount; (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Financing; (iii) expand, amend, or modify any other terms to the Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing or (B) make the timely funding of the Financing or the satisfaction of the conditions to obtaining the Financing less likely to occur in any respect; or (iv) adversely impact the ability of Purchaser to enforce its rights against the other parties to the Financing Letters or the definitive agreements with respect thereto; provided that Purchaser may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement. Purchaser shall furnish to Seller true and complete copies of any amendment, replacement, supplement, modification, consent or waiver relating to the Financing Letters or any Definitive Financing Agreements as promptly as practicable upon execution thereof.
(b) Subject to the terms and conditions of this Agreement, Purchaser 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, proper or and advisable to arrange arrange, consummate and obtain the Financing as promptly as reasonably practicable not later than the date Closing is required to be effected in accordance with Section 2.9, on the terms and subject only to the conditions contained set forth in the Financing Commitments. Letters and any related Fee Letter (including complying with any request requiring the exercise of so-called “flex” provisions in any Fee Letter) (or on other terms that, with respect to conditionality, are not less favorable to Purchaser shall not permit than the terms and conditions (including any amendment or modification to be made to, or any waiver of any provision or remedy under, “market flex” provisions) set forth in the Financing Commitments (except for Letters and any related Fee Letter so long as such amendments, modifications or waivers which, individually or in the aggregate, other terms would not (and would not reasonably be reasonably expected to preventto) have any result, delay event or impair the availability consequence described in any of the Financing under the Financing Commitments or the consummation clauses (i) through (iv) of the Transactions) without the prior written consent of the SellersSection 5.21(a)), which consent shall not be unreasonably withheldincluding, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use using its reasonable best efforts to (i) maintain in effect the Financing Commitments, Letters in accordance with the terms and subject only to the conditions therein; (ii) negotiate, enter into, execute and deliver definitive agreements (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt Financing) with respect to the Debt Financing contemplated by the Debt Commitment Letters and related Fee Letter (which may reflect “market flex” provisions) (or on other terms that, with respect to conditionality, are no less favorable to Purchaser than the terms contained in the Debt Commitment Letters and any related Fee Letter (including any “market flex” provisions applicable thereto) so long as such other terms would not (and would not reasonably be expected to) have any result, event or consequence described in clauses (i) through (iv) of Section 5.21(a)), in each case, which terms shall not in any respect expand on the conditions to the funding of the Financing at the Closing or reduce the aggregate amount of the Financing below the amount required to satisfy the Required Amount (after taking into account the amount of the Equity Financing and available cash of the Business) unless the Equity Financing is correspondingly increased (such definitive agreement, the “Definitive Financing Agreements”); (iii) satisfy on a timely basis (or obtain or, if deemed advisable by Purchaser, seek the waiver of) all conditions applicable to Purchaser contained in the Debt Commitment Letters and related Fee Letter and the Definitive Financing Commitments that are within its control Agreements and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with in the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, Equity Commitment Letter; (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, including causing the Financing Sources to fund the Debt Financing at the Closing; (v) comply with (or, if deemed advisable by Purchaser, seek the waiver of) its covenants or other obligations pursuant to the Financing Letters and the definitive documents relating to the Financing on or prior to the Effective Time; and (vi) enforce its rights under pursuant to the Financing Commitments in the event of a breach Letters. Purchaser shall pay, or cause to be paid, all commitment or other failure fees arising pursuant to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing Letters as and when they become due.
(or a portion thereofc) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); providedPurchaser shall, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable upon request of the Sellers, Purchaser shall inform the Sellers Seller (i) keep Seller informed on a reasonably current basis and in reasonable detail of any material developments concerning the status of its efforts to arrange the Financing; and (ii) provide Seller with drafts (reasonably in advance of execution) of any Definitive Financing Agreements and any other material developments relating documents related to the FinancingDebt Financing as shall be necessary to allow Seller to monitor the progress of such financing activities. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice in writing (but in any event within two (2) Business Days after the Sellers prompt notice: occurrence or discovery of) (A) upon becoming aware of any material breach or breach, default (or any event or circumstance that, with notice or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser), or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, defaultcancellation, termination or repudiation by any party to the Financing Letters or Definitive Financing Agreements; (B) of the receipt by Purchaser of any written notice or written communication from any Financing Commitment Source with respect to any (1) actual or threatened breach, default, cancellation, termination or repudiation (or notice or communications from lenders or other sources of Debt Financing to Purchaser of any definitive document related such actual or threatened by any party to the Financing Letters or any Definitive Financing Agreements of any provisions of any Financing Commitment or any definitive document related to the Financing Letters or such definitive agreements; or (y2) material dispute or disagreement between or among any parties to any the Financing Commitment Letters or any definitive document agreements related to the Financing; and (C) if for any reason Purchaser at any time believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments Letters or any Definitive Financing Agreements that would reasonably be expected to adversely impact the ability of Purchaser to obtain all or any portion of the Financing necessary to fund the Required Amount (after taking into account the amount of the Equity Financing and available cash of the Business) on the terms and in the manner contemplated by the Commitment Letters or the definitive documents related to the FinancingDefinitive Financing Agreements. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers Seller relating to any circumstance of the circumstances referred to in clause the previous sentence as promptly as reasonably practical after the date that Seller delivers a written request therefor to Purchaser.
(d) If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions in any Fee Letter) contemplated in the Debt Commitment Letters and related Fee Letter, Purchaser shall use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, notify Seller in writing and use its reasonable best efforts to, as promptly as reasonably practicable following the occurrence of such event, (i) arrange and obtain the Debt Financing or such portion of the Debt Financing from the same or alternative sources (A) on terms and conditions (including any “market flex” provisions) that are at least as favorable to Purchaser as those contained in the Debt Commitment Letters and related Fee Letter (including the “market flex” provisions), (B) containing conditions to draw, conditions to Closing and other terms that would reasonably be expected to affect the availability thereof that (1) are not more onerous in any respect than those conditions and terms contained in the Debt Commitment Letters and related Fee Letter, (2) would not reasonably be expected to delay the Closing or make the Closing materially less likely to occur, and (C3) in an amount at least equal to the Debt Financing or such unavailable portion thereof, as the case may be (the “Alternate Debt Financing”); and (ii) obtain one or more new financing commitment letters with respect to such Alternate Debt Financing (the “New Debt Commitment Letters”), which new letters will replace the existing Debt Commitment Letters in whole or in part. Purchaser will promptly provide a copy of any New Debt Commitment Letters (and any fee letter in connection therewith or other agreements related thereto) to Seller. Any reference in this Agreement (other than with respect to representations in this Agreement made by Purchaser that speak as of the immediately preceding sentence. date hereof) to (X) the “Financing Letters” or the “Debt Commitment Letters” will be deemed to include the Debt Commitment Letters to the extent not superseded by a New Debt Commitment Letter at the time in question and any New Debt Commitment Letters to the extent then in effect, the “Financing Letters” shall refer to such documents as otherwise amended or modified in accordance with the terms of this Agreement.
(e) Purchaser shall, and shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that is would reasonably likely be expected to result in the failure of any of the conditions contained in the Financing Commitments Letters or in any definitive agreement related theretorelating to the Financing. If any portion Purchaser acknowledges and agrees that none of the obtaining of the Financing becomes unavailable on or any permitted alternative financing, the terms and conditions completion of any issuance of securities contemplated in by the Financing Commitmentsor Seller or any of its Subsidiaries having or maintaining any available cash balances is a condition to the Closing, Purchaser shall use and reaffirm their obligation to consummate the Transaction irrespective and independently of the availability of the Financing or any permitted alternative financing, the completion of any such issuance, or Seller or any of its Subsidiaries having or maintaining any available cash balances subject to the applicable conditions set forth in Section 8.1 and Section 8.2.
(f) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.21 will require, and in no event will the reasonable best efforts of Purchaser be deemed or construed to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financingrequire, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and seek the Equity Financing from any source other information relating to than a counterparty to, or in any amount in excess of that contemplated by, the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing Equity Commitment Letter or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment fees in excess of those contemplated by the Equity Commitment Letter or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsDebt Commitment Letters.
Appears in 1 contract
Financing. (a) Purchaser Buyer and its Affiliates shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Placing Agreement, if such amendment, modification, waiver or replacement (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (A) materially delay or prevent the Closing Date or (B) materially delay, prevent or otherwise make materially less likely to occur the funding of the Financing (or satisfaction of the conditions to obtaining the Financing), and Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing CommitmentsPlacing Agreement. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Buyer shall give the Sellers Company and Seller Representative prompt (in no event more than three (3) Business Days) written notice: (A1) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could would reasonably be expected to give rise to any material breach or default) by Purchaser, or any party to the Knowledge of Purchaser, Placing Agreement or any other party to any Financing Commitment or definitive document related to the FinancingFinancing of which Buyer obtains actual knowledge; (B2) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment the Placing Agreement or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any other definitive document related to the Financing; and (C3) if for any reason Purchaser Buyer believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on substantially the terms, in the manner or from the sources terms contemplated by the Financing Commitments Placing Agreement or the any other definitive documents related to the Financing. As soon as reasonably practicablepracticable after the date the Seller Representative delivers to Buyer a written request, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written requestthereof, Purchaser Buyer shall provide any information reasonably requested by the Sellers Company relating to any circumstance referred to in clause (A1), (B2) or (C3) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. .
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsPlacing Agreement, Purchaser Buyer shall promptly notify the Seller Representative and shall use its commercially reasonable best efforts to arrange and to obtain alternative financing as promptly as practicable from alternative sources on terms and conditions no less favorable in the aggregate to Buyer (in the reasonable judgment of Buyer) and in an amount sufficient to replace consummate the Financing as transactions contemplated hereby promptly as practicable and without following the imposition occurrence of any new or additional conditions and without any adverse amendment to existing conditions such event. Buyer shall promptly deliver to the Financing, Company true and Purchaser’s obligations under this Section 7.05(a) shall apply complete copies of all agreements pursuant to which any such alternative financing and source shall have committed to provide Buyer with any portion of the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsFinancing.
(bc) Prior Buyer shall take (or cause to the Applicable Closing, the Sellers shall use their be taken) all commercially reasonable efforts to provideactions, and shall use their do (or cause to be done) all commercially reasonable efforts to cause their Affiliates and their respective officersthings, directorsnecessary, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts proper or advisable to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing contemplated by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Placing Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, Buyer 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing CommitmentsDIP Credit Agreement (subject to the right of Buyer to replace, restate, supplement, modify, assign, substitute or amend the DIP Credit Agreement in accordance herewith), (ii) satisfy on a timely basis (or obtain the waiver of) of all conditions applicable to Purchaser the DIP Borrower or its subsidiaries contained in the Financing Commitments DIP Credit Agreement (or any definitive agreements related thereto) that are within in the control of the DIP Borrower or its control and otherwise comply with its covenants and other obligations thereundersubsidiaries, (iii) negotiate with if applicable, obtain a DIP Amendment in form and substance reasonably satisfactory to Seller (it being agreed that the Lenders DIP Amendment entered on August 24, 2020 is satisfactory to Seller), and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event DIP Credit Agreement. Buyer shall give Seller prompt notice upon having knowledge of a any breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request any party of any of the Sellers, Purchaser shall inform the Sellers provisions of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could DIP Credit Agreement that would reasonably be expected to give rise to delay the Closing. Buyer shall promptly provide Seller with any material breach or default) by Purchaser, or notices from the DIP Lenders relating to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) availability of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any DIP Financing Commitment or any definitive document related to at the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsClosing.
(b) Prior Other than as set forth in Section 4.25(c) or Section 3.4(d), Buyer shall not, without the prior written consent of Seller, permit any material amendment or modification to be made to, or any material waiver of any provision or remedy under, the DIP Credit Agreement to the Applicable Closingextent such amendment, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to modification or waiver would (i) provide readily-available financial and other information relating impose new or additional conditions to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion receipt of the Financing by DIP Financing, or otherwise amend or modify any of the Lendersconditions, to the extent receipt of the DIP Financing in a manner that would reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), be expected to prevent or materially impair or delay the Closing or (ii) assist reduce the aggregate amount of the DIP Financing such that Buyer would not or does not have sufficient cash proceeds (together with cash on hand or from other sources) to permit Buyer to pay the Required Amount; provided that Buyer shall notify Seller in writing, and provide to Seller complete and correct copies of, of any amendment, supplement or other modification of, or waiver of any provision or remedy under, the preparation of bank information memoranda and similar documents DIP Credit Agreement (including historical any DIP Amendment) not otherwise prohibited by the foregoing clause (i) or (ii), and pro forma financial statements and information) for in any event within two Business Days, promptly after the Financingtime such amendment, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) atsupplement, modification or waiver is agreed. Upon any such amendment, supplement or other modification of, or conditional uponwaiver under, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them DIP Credit Agreement in accordance with this Section 4.25(b) or Section 3.4(d), the Confidentiality term “DIP Credit Agreement” shall mean the DIP Credit Agreement as so amended, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionssupplemented, modified or waived.
Appears in 1 contract
Financing. (a) Purchaser Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, take all actions and to do, or cause to be done, do all things necessary, proper or advisable to arrange consummate and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to conditions (including the conditions contained flex provisions) set forth in the Financing Commitments. Purchaser Agreements and any related Fee Letter, including using reasonable best efforts to seek to enforce its rights under the Debt Commitment Letters in the event of a material breach thereof by the Financing Sources thereunder, and shall not permit agree to any amendment or modification to be made to, or any waiver of any provision or remedy underremedy, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Debt Financing Commitments or the consummation of the Transactions) without the prior written consent of the SellersCompany if such amendments, which consent shall not be unreasonably withheld, conditioned modifications or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (waivers could or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default(i) by Purchaser, or to reduce the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) aggregate amount of the receipt of any written notice Debt Financing below the amount required to consummate the Merger and repay or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to refinance the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes debt contemplated in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments this Agreement or the definitive documents related to the Debt Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (Bii) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any impose new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement receipt of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Debt Financing, (iii) cause prevent or materially delay the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate consummation of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) transactions contemplated by this Agreement or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in adversely impact the preparation of, entering into and, upon reasonable prior notice ability of Parent or Merger Sub to enforce their rights against the other parties to the extent Debt Financing. For purposes of clarification, the foregoing shall not prohibit Parent from amending the Debt Commitment Letters and any related Fee Letter solely to the participation in meetingsadd additional lender(s), presentationslead arrangers, drafting sessions bookrunners, syndication agents or similar activitiesentities (and Affiliates of such additional lender(s), lead arrangers, bookrunners, syndication of one agents or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including similar entities) as a party thereto. Any reference in this Agreement to (x) “Debt Financing” shall include the financing contemplated by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing Agreements as amended or modified in compliance with this Section 6.08(a) and (viiiy) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to “Financing Agreements” or “Debt Commitment Letters” shall include such documents as amended or modified in compliance with this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off6.08(a). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser Acquiror 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, proper or advisable to arrange and obtain the PIPE Financing as promptly as (and the Company shall reasonably practicable cooperate with Acquiror in connection thereto) on a timely basis on the terms and subject only to the conditions contained described in the Subscription Agreements, including using its reasonable best efforts to (i) comply with its respective obligations under the Subscription Agreements, (ii) maintain in effect the Subscription Agreements in accordance with the terms and conditions thereof, (iii) satisfy on a timely basis all conditions and covenants applicable to Acquiror set forth in the applicable Subscription Agreements within its control, and (iv) consummate the PIPE Financing Commitmentswhen required pursuant to this Agreement. Purchaser Acquiror shall not permit give the Company prompt written notice upon having actual knowledge of any amendment breach or modification default by any party to be made to, any of the Subscription Agreements or any waiver termination (or purported termination) of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments Subscription Agreements. Other than as set forth in this Section 5.7(a) or the consummation of the Transactions) Section 5.7(b), Acquiror shall not, without the prior written consent of the SellersCompany, which consent shall not be unreasonably withheldamend, conditioned modify, supplement or delayed. Without limiting the generality waive any of the foregoing, Purchaser shall use reasonable best efforts conditions or contingencies to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those funding set forth in the Financing Commitments. Upon Subscription Agreements or any other provision of, or remedies under, the reasonable request of the SellersSubscription Agreements (except as otherwise permitted hereunder), Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating in each case to the Financing. Without limiting the generality of the foregoingextent such amendment, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach modification, supplement or default (or any event or circumstance that, with or without notice, lapse of time or both, could waiver would reasonably be expected to give rise have the effect of adversely affecting in any respect the ability of Acquiror to any material breach or default) timely consummate the transactions contemplated by Purchaserthis Agreement, or to including by reducing the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) aggregate amount of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any PIPE Financing Commitment or any definitive document related to Amount contemplated in the Financing of any provisions of any Financing Commitment or any definitive document related to Subscription Agreements such that the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will Available Distributable Cash would not be able sufficient to obtain satisfy the condition set forth in Section 6.3(e).
(b) If all or any portion of the PIPE Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A)becomes unavailable, (Bi) Acquiror shall promptly use its reasonable best efforts to promptly obtain the PIPE Financing or (C) such portion of the immediately preceding sentence. Purchaser shall refrain PIPE Financing from takingalternative sources in an amount, directly or indirectly, any action that is reasonably likely when added to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the PIPE Financing becomes unavailable on that is available, equal to the terms PIPE Financing Amount (any alternative source(s) of financing, “Alternative PIPE Financing”) and conditions contemplated (ii) in the Financing Commitmentsevent that Acquiror is able to obtain any Alternative PIPE Financing, Purchaser Acquiror shall use its reasonable best efforts to arrange enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the subscription and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition purchase of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to Acquiror Class A Shares containing terms and conditions with respect to any alternative financing that are, in the aggregate, not materially less favorable in any material respect to Purchaser from the standpoint of Acquiror and the Affiliates of an Acquiror Party thereto than those set forth in the Financing Commitments.
Subscription Agreements entered into as of the date of this Agreement (b) Prior to as determined in the Applicable Closingreasonable good faith judgment of Acquiror). In such event, the Sellers term “PIPE Financing” as used in this Agreement shall use their commercially reasonable efforts be deemed to provideinclude any Alternative PIPE Financing, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the term “PIPE Investor” as used in this Agreement shall use their commercially reasonable efforts be deemed to cause their Affiliates and their respective officersinclude any Person that is subscribing for Acquiror Class A Shares under any Alternative Subscription Agreement. For the avoidance of doubt, directors, employees and agents to provide, at Purchaser’s sole cost and expense, if all reasonable cooperation in connection with the arrangement or any portion of the PIPE Financing as or Alternative PIPE Financing becomes unavailable, Acquiror may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain utilize deposits, proceeds or any other amounts from the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the LendersTrust Account and, to the extent reasonably requested by Purchaser acceptable to the Company, any additional third party financing to satisfy its financing obligations hereunder (including prior real estate title commitments, surveys, environmental reports and similar informationto satisfy the Minimum Cash Condition), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub 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, proper or advisable to arrange and (i) obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toDocuments, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (iii) maintain in effect the Financing Commitments, Documents and (iiiii) satisfy on a timely basis (or obtain the waiver of) all conditions to the closing of and funding under the Financing Documents applicable to Purchaser in the Financing Commitments Parent and/or Merger Sub that are within its control their control; provided that Parent and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to Merger Sub may amend or modify the Financing on the terms and subject only Documents, and/or elect to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain replace all or any portion of the Debt Financing with alternative debt financing on the termsterms and conditions not materially less favorable, in the manner or aggregate, from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) standpoint of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in Company than the failure of any terms and conditions contained as set forth in the Financing Commitments Documents as in effect on the date hereof (the “Alternative Financing”), in each case so long as the aggregate proceeds of the Financing (as amended or modified) and/or any definitive agreement related theretoAlternative Financing will be sufficient for Merger Sub and the Surviving Corporation to pay (i) the Merger Consideration, and (ii) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby. If Parent shall deliver to the Company as promptly as practicable (and no later than two Business Days) after such execution, true and complete copies of all Contracts or other arrangements pursuant to which any such alternative sources have committed to provide such Alternative Financing. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing CommitmentsDocuments, Purchaser Parent shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace notify the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsCompany.
(b) Prior Subject to the Applicable Closingterms and conditions of this Agreement, Parent and Merger Sub agree not to amend, modify or waive any provision of the Financing Documents, if such amendment, modification or waiver reduces (or would reduce) the aggregate amount of the Financing or imposes new or additional conditions or otherwise expands, amends or modifies the conditions to the Financing in a manner that would be expected to prevent or materially delay the ability of the Company, Parent or Merger Sub to consummate the Transactions or otherwise adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Documents. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any provision of, or termination by any party to, the Sellers shall use their commercially reasonable efforts Financing Documents or (ii) upon the receipt of any written notice from any person with respect to any threatened breach or threatened termination of the Financing Documents.
(c) The Company agrees to provide, and shall use their commercially reasonable efforts to cause their Affiliates each of its Subsidiaries and each of their respective officers, directors, employees Representatives to provide to Parent and agents to provide, at Purchaser’s sole cost and expenseMerger Sub, all reasonable cooperation as may be requested by Parent or its Representatives in connection with the arrangement of Debt Financing and/or Alternative Financing and the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the FinancingTransactions, including to including, without limitation, (i) provide readily-available financial participation in meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other information relating to meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Sellers to the Lenders Company with Representatives of Parent and its Debt Financing and/or Alternative Financing sources, (including information to be used ii) assisting in the preparation of an informational package regarding the businessoffering memoranda, operationsprivate placement memoranda, financial projections bank information memoranda, prospectuses, rating agency presentations and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent similar documents reasonably requested by Purchaser Parent or its representatives in connection with the Debt Financing and/or Alternative Financing (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially using reasonable best efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the FinancingDebt Financing and/or Alternative Financing and delivery of one or more customary representation letters), (iii) or other documents as promptly as practicable, furnishing Parent and instruments relating to guarantees its Debt Financing and/or Alternative Financing sources with financial and other matters ancillary to pertinent information regarding the Financing Company and its Subsidiaries as may be reasonably requested by PurchaserParent and its Debt Financing and/or Alternative Financing sources (the “Required Information”), (iv) assist in the preparation ofreasonably cooperating with advisors, entering into and, upon reasonable prior notice consultants and accountants of Parent or its Debt Financing and/or Alternative Financing sources with respect to the extent related to conduct of any examination, appraisal or review of the participation in meetings, presentations, drafting sessions financial condition or similar activities, syndication any of one the assets or more credit agreements, note purchase agreements, indentures, currency liabilities of the Company or interest hedging agreements or other agreementsany Subsidiary, including by refraining from entering into any competing financing transactionsfor the purpose of establishing collateral eligibility and values, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonablein accordance with applicable Laws, facilitating the securing or pledging of collateral and executing and delivering any pledge and security documents, commitment letters or other definitive financing documents, provided that any collateral or security granted hereunder and any obligations of the Company or any of its Subsidiaries under any such definitive documents shall be contingent upon the occurrence of the Effective Time, (vi) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing and/or any Alternative Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, provided that the information provided to such prospective lenders shall be subject to the terms of the Confidentiality Agreements, and (B) establishing bank and other accounts, blocked account agreements and lock box arrangements in connection with the foregoing, (vii) refrain from pursuing furnishing Parent, Merger Sub and its Representatives promptly with all documentation and other information required with respect to the Debt Financing and/or any financing transactions Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations, provided that may delaythe information provided to such prospective lenders shall be subject to the terms of the Confidentiality Agreements, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders using reasonable best efforts to benefit from the existing lending relationships obtain any necessary rating agencies’ confirmation or approval of the Sellers Debt Financing and/or Alternative Financing, and their Affiliates; provided(ix) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or Alternative Financing, howeverincluding without limitations the execution and delivery of any other certificates, that no requested cooperation pursuant instruments or documents, and to this Section 7.05(b) permit the proceeds thereof to be made available to the Company at Closing to consummate the Merger. Neither the Company nor any of its Subsidiaries shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to (x) pay any commitment or other similar feefee prior to the Effective Time, (By) have incur any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financingexpense unless such expense is reimbursed by Parent promptly after incurrence thereof, or (Cz) incur commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time or that would otherwise subject it to actual or potential liability in connection with any Financing. Nothing contained in this Section 6.07(c) or otherwise shall require the Company or any of its Subsidiaries to be an issuer or other obligor with respect to any Financing prior to the Effective Time.
(d) Parent shall promptly, upon the termination of this Agreement, reimburse the Company for all reasonable and documented out-of-pocket expense unless such expense is advanced costs and expenses (including reasonable attorneys' fees) incurred by the Company or simultaneously reimbursed any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by Purchaser (without set-off). Purchaser shall, without the right of set-off, this Section 6.07 and shall indemnify and hold harmless Sellers the Company, its Subsidiaries and their respective subsidiaries and Representatives from and against any and all Losses liabilities or losses suffered or incurred by any of them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Debt Financing or (2) and any information utilized used in connection therewith (other than except with respect to any information relation to Sellers approved provided by Sellers for use thereinor on behalf of the Company or any of its Subsidiaries), except in the event such liabilities or losses arose out of or result from the wilful misconduct of the Company, its Subsidiaries or any of their respective Representatives. This indemnification shall survive termination Each of this Agreement. All material, non-public information regarding Sellers Parent and Merger Sub acknowledges and agrees that the Company and its Subsidiaries and their Affiliates provided respective Representatives shall not, prior to Purchaser or its Representative pursuant the Effective Time, incur any liability to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required any person under any financing that Parent and Merger Sub may raise in connection with the Financing subject to customary confidentially protectionsTransactions.
Appears in 1 contract
Financing. (a) Purchaser Seller shall, and shall cause its Affiliates to, and shall use its commercially reasonable best efforts to takecause its and its Affiliates’ respective officers, directors, employees, accountants, consultants, legal counsel, agents and other advisors and representatives to, cooperate with Buyer and its representatives in connection with the arrangement by Buyer of bank financing and/or bond offerings (on a Rule “144A-for-life” basis) for the purpose of financing the Transactions, the fees and expenses incurred in connection therewith and the other transactions contemplated hereby (the “Debt Financing”) as may be reasonably requested by Buyer; provided, that (i) such requested cooperation shall not unreasonably interfere with the ongoing operations of Seller and its Affiliates, (ii) Seller and its Affiliates shall not be required to provide any audited or cause unaudited financial statements or any other financial information except as expressly required by Section 6.08(a) and (iii) Seller and its Affiliates shall not be required to be taken, all actions and provide any updates to do, any of the financial statements or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only other financial information provided prior to the conditions contained in date hereof or provided after the Financing Commitmentsdate hereof pursuant to Section 6.08(a). Purchaser shall not permit any amendment or modification to be made toBuyer shall, promptly upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs incurred by Seller or any waiver of its Affiliates in connection with such cooperation. Buyer and its Affiliates shall, on a joint and several basis, indemnify and hold harmless Seller and its Affiliates from and against any provision Damages suffered or remedy under, incurred by them in connection with the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability arrangement of the Debt Financing, including any information utilized in connection therewith; provided that nothing in this Section 6.11 shall limit the Buyer Indemnitees’ rights to indemnification under Article X to the extent there is an underlying indemnifiable claim. Seller shall have the right to consent to the use of its and its Affiliates’ logos in connection with the Debt Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, (which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to ).
(ib) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect Notwithstanding anything to the Financing contrary in this Section 6.11, Buyer acknowledges and agrees that its obligation to consummate the Transactions on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (set forth herein are not contingent on any debt or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing equity financing (including taking enforcement action to cause the Lenders to provide the Debt Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsproceeds therefrom.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement, Buyer 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on a timely basis (taking into account the anticipated timing of the Marketing Period) on terms and subject only conditions not less favorable to the conditions Buyer than those contained in the Financing Commitments. Purchaser shall not permit applicable Commitment Letters and the Fee Letter (including any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or “market flex” provisions that are contained in the aggregateFee Letter), would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts to (i) maintain in effect the Financing Commitmentsapplicable Commitment Letters (subject to Buyer’s right to replace, restate, supplement, modify, assign, substitute or amend the Commitment Letters in accordance herewith), (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing Debt Commitment Letter on conditions no less favorable to Buyer than those contained in the terms Debt Commitment Letter and subject only the Fee Letter (including any such “market flex” provisions contained in the Fee Letter), (iii) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) or obtain the waiver of all conditions applicable to Buyer contained in the conditions contemplated by the Financing Commitments, applicable Commitment Letters (or any definitive agreements related thereto) that are within Buyer’s control and (iv) consummate the Financing (or contemplated by the Commitment Letters and the Fee Letter substantially concurrently with the Closing. Buyer shall keep Seller informed upon request on a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments reasonable basis and in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Buyer shall give the Sellers Seller prompt notice: (A) notice upon becoming aware having knowledge of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to of any Financing of the Commitment Letters or any definitive document related to the Financing termination of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsCommitment Letters.
(b) Prior Other than as set forth in Section 5.19(c), prior to Closing, Buyer shall not, without the prior written consent of Seller, amend, modify, supplement or waive any provision of the Commitment Letters or the Fee Letter to the Applicable Closingextent such amendment, modification, supplement or waiver would (i) reduce the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement aggregate amount of the Financing as may set forth in the Commitment Letters below an amount that, when combined with Buyer’s other sources of funds, will be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts sufficient for Buyer to obtain perform its obligations hereunder or (ii) impose new or additional conditions, or otherwise amend or modify any of the Financingconditions, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion receipt of the Financing by in a manner that would reasonably be expected to (A) make the Lenders, funding of the Financing (or the satisfaction of the conditions to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for obtaining the Financing) less likely to occur or (B) materially delay the Closing; provided that Buyer may amend, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) atsupplement, or conditional uponmodify the Debt Commitment Letter to add lenders, the Applicable Closing customary certificates lead arrangers, bookrunners, syndication agents, or similar entities (including a certificate of the principal financial officer of each of the Sellers or titles with respect to solvency matters), accounting comfort letters such entities) (including consents it being understood that the aggregate commitments of accountants for use of their reports in any materials relating the lenders party to the Financing) Debt Commitment Letter prior to such amendment, supplement or other documents and instruments relating to guarantees and other matters ancillary to the Financing as modification may be reasonably requested by Purchaser, (iv) assist reduced in the preparation ofamount of such additional party’s commitments). Upon any such amendment, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions supplement or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants modification of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede Equity Commitment Letter or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them Debt Commitment Letter in accordance with this Section 5.19, the Confidentiality Agreementterm “Equity Commitment Letter” or “Debt Commitment Letter”, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsapplicable thereto, shall mean such Commitment Letter as so amended, supplemented or modified.
Appears in 1 contract
Sources: Stock Purchase Agreement (Patterson Companies, Inc.)
Financing. (a) Purchaser 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only 4.5.1 Prior to the conditions contained in the Financing Commitments. Purchaser Closing, Buyer shall, and shall cause its Affiliates to, not permit any amendment or modification to be made to, or make or permit any waiver of any provision or remedy under, the Credit Agreement if such amendment, modification or waiver (a) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing Commitments available at the Closing unless Buyer or its Affiliates otherwise have sufficient available resources to perform the obligations required hereunder at the Closing, or (except for b) imposes new or additional conditions or otherwise expands, amends or modifies any such amendmentsconditions, modifications or waivers whichto the receipt of the Debt Financing, individually or in the aggregatecase of either clause (a) or (b) above, in a manner that would not reasonably be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, materially delay or prevent or (ii) satisfy on a timely basis (or obtain make less likely the waiver of) all conditions applicable to Purchaser in funding of the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Debt Financing (or a portion thereofsatisfaction of the conditions to the Debt Financing) at on or prior to the Applicable Closing Date. Prior to the Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable ClosingBuyer shall, and (vi) otherwise shall cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); providedits Affiliates to, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any of the conditions contained in the Credit Agreement, except that Buyer may amend or replace the Credit Agreement so long as (x) such amendment does not impose terms or conditions that would reasonably be expected to materially delay or prevent the Closing and (y) with respect to replacements, the replacement debt commitments satisfy the terms and conditions of an Alternative Financing Commitments set forth below. In the event of such amendment or replacement of the Credit Agreement as permitted by the proviso to the immediately preceding sentence, the financing under such amended or replaced debt commitment will be deemed to be “Debt Financing” as such term is used in this Agreement. During the Pre-Closing Period, Buyer shall not consummate or enter into any definitive agreement to consummate any acquisition or other strategic transaction that requires Buyer to draw any funds available as of the date hereof under the Credit Agreement prior to Closing or that would result in the Debt Financing not being able to be funded at the Closing.
4.5.2 Buyer shall, and shall cause its Affiliates to, use reasonable best efforts to satisfy on a timely basis all conditions to funding in the Credit Agreement applicable to Buyer to obtain the Debt Financing as promptly as practicable and shall give Seller prompt notice (i) of any material breach or material default (or any event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material default or material breach) by any party to the Credit Agreement or other definitive agreements related theretoto the Debt Financing of which Buyer or any of its Affiliates become aware, (ii) of the receipt of any notice or other communication from any financing source with respect to any (A) actual breach, default, termination or repudiation by any party to the Credit Agreement or other definitive agreements related to the Debt Financing or (B) material dispute or disagreement between or among any parties to the Credit Agreement or other definitive agreements related to the Debt Financing, in each case, with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded on the Closing Date and (iii) if at any time for any reason Buyer believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the Closing Date; provided that in no event will Buyer be under any obligation to disclose any information that is subject to attorney-client or other established legal privilege if Buyer shall have used its reasonable best efforts to disclose such information in a way that could not waive such privilege. As soon as reasonably practicable, following the date on which Seller delivers to Buyer a written request therefor, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (i), (ii) or (iii) of the immediately preceding sentence. If any portion of the Debt Financing becomes unavailable or Buyer becomes aware of any event or circumstance that would reasonably be expected to make any portion of the Debt Financing unavailable, and on the material terms and conditions contemplated by the Credit Agreement (as modified in accordance with the Financing Commitmentsterms hereof), Purchaser shall (i) Buyer will promptly notify Seller and (ii) Buyer will use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing as promptly as practicable from alternative sources in an amount sufficient to replace consummate the Financing transactions contemplated by this Agreement at the Closing with terms and conditions not materially less favorable, taken as a whole, to Buyer and Seller than the terms and conditions set forth in the Credit Agreement (“Alternative Financing”) as promptly as practicable and without following the imposition occurrence of such event. In such event, (1) the term “Debt Financing” will be deemed to include the Alternative Financing, (2) the term “Credit Agreement” will be deemed to include any new commitment letters or additional conditions and without any adverse amendment to existing conditions definitive documentation entered into pursuant to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions thereof with respect to any such alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitmentsdebt financing.
(b) Prior to 4.5.3 During the Applicable ClosingPre-Closing Period, the Sellers Seller shall, and shall cause its Affiliates to, use their respective commercially reasonable efforts to provideprovide or cause to be provided, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officersRepresentatives to provide or cause to be provided, directorsto Buyer, employees and agents to providein each case, at PurchaserBuyer’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and Buyer that is customary necessary to consummate the Debt Financing (in connection with Purchaser’s efforts to obtain the Financingeach case, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for so long as such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or does not unreasonably interfere with the ongoing operations of Sellers Seller and its Affiliates) and causing the conditions in the Credit Agreement to be satisfied, including in (i) preparing and furnishing to Buyer and the Sellers Financing Sources as promptly as practicable all information and disclosures relating to the Product Business as may be reasonably requested by Buyer, (ii) facilitating the pledging of collateral for the Debt Financing, effective upon and subject to the occurrence of the Closing, (iii) obtaining from Seller’s and its Affiliates’ existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Buyer in connection with the Debt Financing and collateral arrangements, including customary payoff letters, lien releases, instruments of termination or discharge, all effective upon and subject to the occurrence of the Closing, and (iv) cooperating with Buyer to satisfy the conditions precedent to the Debt Financing to the extent within the control of Seller or its Affiliates, provided, however, that (a) none of Seller or any of its Affiliates shall have any Liability in connection with any cooperation provided pursuant to this Section 4.5.3 (including for costs or expenses that are not reimbursed in full by Buyer prior to the Closing), (b) none of Seller or any of its Affiliates shall be required pursuant to this Section 4.5.3 to prepare or cause its Representatives to prepare any financial statements with respect to the Product Business, Purchased Assets or Assumed Liabilities not otherwise prepared by Seller or its Affiliates in the ordinary course as of the Execution Date, and (c) none of the Seller or any of its Affiliates shall be required to (x) issue or cause to be issued any legal opinions or account’s comfort letters or (y) take any action (A) be required under any certificate, document or instrument relating to pay the Debt Financing that is not contingent upon the Closing (including the entry into any commitment or other similar feeagreement that is effective before the Closing), (B) have that would reasonably be expected to cause any Liability under any credit agreementdirector, note purchase agreementofficer, indentureor employee of the Seller or its Affiliates to incur personal liability in connection with the Debt Financing, hedging agreement (C) that would conflict with or other agreement violate its organizational documents or document related to the Financingviolate applicable Laws, or (CD) incur that would cause any condition to the Closing to fail to be satisfied or otherwise cause a material breach of this Agreement. Buyer shall, promptly upon request by Seller, reimburse, or cause its Affiliates to reimburse, Seller for Seller’s and its Affiliates’ reasonable and documented out-of-pocket expense unless costs and expenses incurred by Seller and its Affiliates in connection with such expense is advanced or simultaneously reimbursed cooperation contemplated by Purchaser (without set-off). Purchaser shall, without the right of set-off, this Section 4.5.3 and shall indemnify and hold harmless Sellers Seller, its Affiliates and their respective subsidiaries and Representatives from Representative, in each case, acting on behalf of Seller or its Affiliates for and against any and all Losses suffered or incurred by any of them in connection with the Debt Financing (1) including any action taken in connection with this Section 4.5.3), except to the extent such Losses result from the gross negligence or willful misconduct of Seller, its Affiliates or its Representatives. The obligations of Buyer in the foregoing sentence shall survive the consummation of the transactions contemplated by them at this Agreement and the request termination of Purchaser this Agreement.
4.5.4 All non-public information provided by or on behalf of Seller or its Affiliates to Buyer, its Affiliates or its Representatives pursuant to this Section 7.05(b) 4.5 or otherwise in connection with the arrangement Debt Financing is subject to the terms of Section 5.4.
4.5.5 Notwithstanding anything to the contrary contained in this Agreement, each Party: (a) agrees that it will not bring or support any Person in any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any sources of Debt Financing (which for the purposes of this provision shall include the lenders under the Credit Agreement and all other sources of Debt Financing and their respective Affiliates, equityholders, members, partners and Representatives involved in the financing contemplated by the Credit Agreement) in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including any dispute arising out of or relating in any way to the Credit Agreement or the performance thereof or the financings contemplated thereby, in any forum other than the federal and state courts located in Delaware; (b) agrees that, except as specifically set forth in the Credit Agreement, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any sources of Debt Financing in any way relating to any of the Credit Agreement or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules or conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction; and (2c) hereby irrevocably and unconditionally waives any information utilized right such Party may have to a trial by jury in respect of any litigation (whether in law or in equity, whether in contract or in tort or otherwise) directly or indirectly arising out of or relating in any way to the Credit Agreement or the performance thereof or the financings contemplated thereby. Notwithstanding anything to the contrary contained in this Agreement, (x) the Seller, and its respective Affiliates, Representatives, partners, managers, members or stockholders shall not have any rights or claims against any source of Debt Financing, in any way relating to this Agreement or any of the transactions contemplated by this Agreement, or in respect of any, or in respect of any oral representations made or alleged to have been made in connection therewith (other than information relation herewith or therewith, including any dispute arising out of or relating in any way to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All materialthe Credit Agreement or the performance thereof or the financings contemplated thereby, non-public information regarding Sellers and their Affiliates provided to Purchaser whether at law or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them equity, in accordance with the Confidentiality Agreementcontract, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.tort or otherwise and
Appears in 1 contract
Sources: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)
Financing. (a) Purchaser Parent 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, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Debt Financing Commitments. Purchaser shall not permit any amendment or modification to be made toCommitment, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts to (i) maintain in effect the Debt Financing CommitmentsCommitment until the transactions contemplated by this Agreement are consummated, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Purchaser Parent and Merger Sub in the Debt Financing Commitments that are within its control Commitment (including by consummating the financing pursuant to the terms of the Equity Financing Commitment) and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing thereto on the terms and subject only to conditions (including, if necessary, the conditions flex provisions) contemplated by the Debt Financing CommitmentsCommitment, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, Closing and (v) enforce its rights under the Debt Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing Commitment (including by taking enforcement action (including through litigation) to cause lenders and other persons providing the Lenders financing to provide the Financingfund such financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall give the Sellers Company prompt notice: (A) upon becoming aware of any material breach or default (or by any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; and (B) of the receipt of any written notice or other written communication from any Person person with respect to any any: (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any the Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment. In furtherance of the provisions of this Section 6.7(a), Debt Financing Commitment may be amended, restated, supplemented or any definitive document related otherwise modified to add or replace one or more lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as of the date hereof, to increase the amount of indebtedness or otherwise to replace one or more facilities with one or more new facilities in a manner not less beneficial to Parent and Merger Sub (as determined in the reasonable judgment of Parent); provided that such modified Debt Financing Commitment shall not (i) amend the conditions to the FinancingDebt Financing so as to add any conditions to the initial funding or otherwise adversely impact the ability of Parent or Merger Sub to timely consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby; (ii) reduce the aggregate amount of available Debt Financing (unless, in the case of this clause (ii), replaced with an amount of new equity financing on terms no less favorable in any material respect to the Company and (C) if for any reason Purchaser believes the Representative than the terms set forth in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any the Equity Financing Commitment or any definitive document related additional debt financing pursuant to the Debt Financing Commitment as may be modified in accordance with the terms hereof); or (yiii) it is reasonably likely that it will not be able to obtain all prevent, delay or any portion impair the availability of financing under the Debt Financing Commitment or the timely consummation of the Financing on the terms, in the manner or from the sources transactions contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related theretothis Agreement. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Financing CommitmentsCommitment, Purchaser Parent shall use its reasonable best efforts to arrange and obtain alternative financing as promptly as practicable from alternative sources in an amount sufficient to replace consummate the Financing transactions contemplated by this Agreement as promptly as practicable and without following the imposition occurrence of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitmentsevent; provided, that Purchaser Parent shall not be required to agree seek or accept any such alternate financing if the terms or conditions thereof are not substantially comparable to those terms and conditions in the Debt Financing to be replaced, and with respect to economic terms and conditions (including, with respect to pricing, maturity or amortization), are not as favorable in the aggregate to Parent as the terms and conditions for the Debt Financing that will be replaced. Notwithstanding anything contained in this Section 6.7 or in any alternative financing that areother provision of this Agreement, in no event shall Parent or Merger Sub be required (x) to amend or waive any of the aggregate, materially less favorable in any material respect terms or conditions hereof or (y) to Purchaser than those set forth in consummate the Financing CommitmentsClosing prior to the Business Day immediately following the final day of the Marketing Period.
(b) Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and concurrently provide copies of all substantially final drafts of and executed documents provided to the lenders or otherwise related to the Debt Financing to the Company.
(c) Prior to the Applicable Closing, the Sellers Company shall, and shall use their commercially reasonable efforts to providecause its Subsidiaries to, and shall use their commercially its reasonable best efforts to cause their Affiliates its Representatives, to provide to Parent and their respective officers, directors, employees and agents to provideMerger Sub, at PurchaserParent’s sole cost and expense, all reasonable cooperation reasonably requested by Parent in connection with the Financing (including any offering of debt securities pursuant to Rule 144A under the Securities Act), including (i) furnishing Parent and Merger Sub and their financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and that is customary to be included in (x) marketing materials for senior secured indebtedness (or any documentation or deliverables in connection therewith) or (y) an offering document relating to an offering of secured or unsecured high-yield debt securities under Rule 144A of the Securities Act, including financial statements, and management discussion and analysis of the Company and its Subsidiaries required by Regulation S-X and Regulation S-K under the Securities Act for an offering of securities registered on Form S-1 under the Securities Act (other than Rule 3-10 and Rule 3-16 of Regulation S-X) that would be considered current for purposes of such a registration statement throughout the Marketing Period (all such information in this clause (i), the “Required Bank Information”) and promptly providing Parent with any supplements to the Required Bank Information reasonably requested by Parent during the Marketing Period, (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing, and assisting with the preparation of materials for rating agency presentations, roadshow presentations, offering memoranda, bank information memoranda and similar documents required in connection with the Debt Financing and otherwise assist in the marketing efforts related to the Debt Financing, (iii) using commercially reasonable efforts to obtain customary comfort letters of accountants, legal opinions, surveys and title insurance as reasonably requested by Parent and customary for financings similar to the Financing (including any offering of debt securities pursuant to Rule 144A under the Securities Act); (iv) executing and delivering and causing its Subsidiaries to execute and deliver, effective as of the Effective Time and on the Closing Date, one or more credit or other agreements on terms reasonably satisfactory to Parent in connection with the Debt Financing as well as any pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters of the Company and its Subsidiaries on a consolidated basis) and otherwise reasonably facilitating the pledging of collateral and taking all necessary corporate or other entity actions to facilitate all of the foregoing (it being understood that the Company shall not be required to execute any Contracts prior to the Closing Date), (v) prior to the Closing Date, providing all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by Parent’s financing sources at least five (5) days prior to the Closing Date with respect to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act and (vi) arranging for the repayment on the Closing Date of all of the Company’s existing secured bank and unsecured notes facilities from the proceeds of the Financing contemplated hereby and using commercially reasonable efforts to obtain customary pay-off letters, lien terminations, title transfers, and instruments of discharge or transfer relating to any collateral to be delivered at the Closing Date; provided that neither the Company nor any of its Subsidiaries shall be required to commit to or enter into any agreement that is not contingent upon the Closing or that would be effective prior to the Effective Time. None of the Company or any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) or incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time, except to the extent such action, cost, expense, payment or fee is subject to reimbursement or indemnification pursuant to the next two sentences. Parent shall indemnify and hold harmless the Company, its Subsidiaries and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to in accordance with this Section 7.05(b6.7(c)) or in connection with the arrangement of the Financing or (2) and any information utilized in connection therewith (other than historical financial information relation relating to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser the Company or its Representative pursuant Subsidiaries or other information furnished by or on behalf of the Company, its Subsidiaries or its Representatives), in each case except to this Section 7.05(b) shall be kept confidential the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties arise from the Company’s, its Subsidiaries’ or its Representatives’ gross negligence, fraud or willful misconduct, as determined by them in accordance with a court of competent jurisdiction. Parent shall, promptly upon request by the Confidentiality AgreementCompany, except reimburse the Company and its Subsidiaries for disclosure to potential investors as required all reasonable out-of-pocket costs incurred by Company or its Subsidiaries in connection with such cooperation. Parent and Merger Sub acknowledge and agree that the Financing subject obtaining of the Financing, or any alternative financing, is not a condition to customary confidentially protectionsClosing.
Appears in 1 contract
Financing. (a) Purchaser shall use its reasonable best efforts In the event that Acquiror, Merger Sub and/or an Affiliate obtain one or more debt commitment letters relating to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, or any waiver part of the Debt Financing (the “Commitment Letters”), Acquiror shall promptly provide the Company copies of the executed Commitment Letters. Acquiror shall give the Company prompt notice (A) if and when Acquiror or Merger Sub becomes aware that any provision or remedy under, portion of the Debt Financing Commitments (except for contemplated by any such amendments, modifications or waivers which, individually or in the aggregate, would Commitment Letter may not be reasonably expected available to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable ClosingMerger, and (viB) otherwise cause of any termination of any Commitment Letter. Acquiror and Merger Sub shall keep the Lenders to fund Company informed on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, reasonably current basis in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers detail of the status of its their efforts to arrange the Debt Financing or Alternative Financing and any material developments relating provide to the Financing. Without limiting the generality Company copies of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware executed copies of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicableDebt Financing or Alternative Financing (excluding any fee letters, but engagement letters or other agreements that, in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written requestaccordance with customary practice, Purchaser shall provide any information reasonably requested are confidential by the Sellers relating to any circumstance referred to in clause (Atheir terms), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitmentsapplicable Commitment Letter and if Acquiror and Merger Sub obtain alternative financing (“Alternative Financing”), Purchaser the provisions of this Section 7.4 shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions be applicable to the Alternative Financing, . Acquiror and Purchaser’s obligations under this Section 7.05(a) Merger Sub shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to Company promptly upon receiving the participation in meetingsDebt Financing or, presentationsif applicable, drafting sessions or similar activitiesthe Alternative Financing. Notwithstanding the foregoing, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including compliance by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably Acquiror with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers 7.4 shall not (A) be required relieve Acquiror of its obligation to pay any commitment consummate the transactions contemplated by this Agreement, whether or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to not the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Debt Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Alternative Financing subject to customary confidentially protectionsis available.
Appears in 1 contract
Sources: Merger Agreement (ASC Holdco, Inc.)
Financing. (a) Purchaser Parent acknowledges that it shall be fully responsible for obtaining the Financing and 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, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made toCommitment, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use including using reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control Commitment and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing thereto on the terms and subject only to the conditions contemplated by set forth in the Financing CommitmentsCommitment (collectively, the “Financing Agreement”), (ii) ensure the accuracy of all representations and warranties of Parent set forth in the Financing Commitment, (iii) comply with all covenants and agreements of Parent set forth in Financing Commitment, (iv) satisfy on a timely basis all conditions applicable to Parent in the Financing Commitment that are within its control, and (v) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that areand, in any event, assuming the aggregate, materially less favorable to Purchaser than those satisfaction of all of the conditions set forth in Sections 8.1 and 8.3 (other than those conditions that by their terms are to be satisfied at the Closing), prior to the Outside Date). Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by PurchaserCommitment, or to the Knowledge of Purchaser, any substitute other party to any Financing Commitment debt or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if raised equity financing for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing from the same or alternative Financing Sources; provided, however, that notwithstanding the foregoing, Parent shall not permit any such amendment, replacement, supplement or other modification to or waiver of any provision of the Financing Commitment, or substituted debt or equity financing, if such amendment, replacement, supplement or other modification or waiver or substituted debt or equity financing would (A) reduce the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing) or (B) impose new or additional conditions, or otherwise amend, modify or expand upon the conditions precedent to the Financing from that set forth in the Financing Commitment, in any such case of (A) or (B) above in a manner that would reasonably be expected to (x) prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated by this Agreement on the termsterms set forth in this Agreement, in (y) make the manner funding of the Financing (or from satisfaction of the sources conditions to obtaining the Financing) less likely to occur or (z) adversely impact the ability of Parent to enforce its rights under the Financing Commitment. For purposes of this Section, references to “Financing” shall include the financing contemplated by the Financing Commitments Commitment as permitted to be amended or the definitive modified by this paragraph (a) and any substitute financing permitted by this paragraph (a) and references to “Financing Commitment” or “Financing Agreement” shall include such documents related as permitted to the Financingbe amended or modified by this paragraph (a) and any comparable documents with respect to any substitute financing permitted by this paragraph (a). As soon as reasonably practicable, but in The net cash proceeds of any event within five (5) Business Days equity offering by Parent or any of its Subsidiaries after the date of this Agreement shall constitute raised equity financing substituting for a comparable portion of the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested debt financing contemplated by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) Financing Commitment for all purposes under this Agreement. The syndication of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely Financing to result in the failure of any conditions contained in extent permitted by the Financing Commitments or any definitive agreement related thereto. If Commitment shall not be deemed to violate Parent’s obligations under this Agreement.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Financing CommitmentsCommitment, Purchaser Parent shall use its reasonable best efforts to arrange and promptly obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing (and the agreements to obtain a new financing commitment letter and a new definitive agreement related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall thereto) on terms not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect beneficial to Purchaser Parent than those set forth the terms in the Financing Commitments.
(b) Prior Commitment in an amount, together with all other cash and cash equivalents of Parent and Merger Sub on the Closing Date, sufficient for Parent and Merger Sub to the Applicable Closingpay in cash all amounts required to be paid by Parent, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation Surviving Corporation or Merger Sub in connection with the arrangement Merger and the other transactions contemplated by this Agreement and to otherwise consummate the Merger and the other transactions contemplated by this Agreement on the terms set forth in this Agreement (an “Alternative Financing”). To the extent not done on or prior to the date hereof, Parent will furnish true and complete copies of any Financing Commitment or Financing Agreement to the Company promptly upon their execution (with only fee amounts and market flex provisions redacted (which in no event shall modify or permit Parent or the lender party to modify the conditions precedent to the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain or otherwise reduce the amount or adversely affect the availability of the Financing, including in any such case, in a manner that would reasonably be expected to (i) provide readily-available financial and prevent, materially impede, or materially delay the consummation of the Merger or the other information relating to transactions contemplated by this Agreement on the Sellers to the Lenders (including information to be used terms set forth in this Agreement; it being understood that any reduction in the preparation of an informational package regarding revolving commitment thereunder, which revolving commitment is not necessary for, and which reduction will not impair, prevent or delay, the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion consummation of the Financing by the LendersMerger, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication subject of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-offredacted market flex provisions). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Merger Agreement (Neustar Inc)
Financing. (a) Purchaser 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, proper or advisable to arrange (i) maintain in effect the Debt Financing and obtain the Debt Financing Commitments, (ii) subject to Seller’s compliance with Section 7.14(c), enter into definitive financing agreements with respect to the Debt Financing, so that such agreements are in effect as promptly as reasonably practicable but in any event no later than the Closing Date, (iii) satisfy on a timely basis all conditions applicable to, and within the terms control of, Purchaser or its Affiliates in such definitive financing agreements and (subject only to the satisfaction of the conditions contained in Section 8.1 and the conditions to closing set forth in the Debt Commitments Letters) consummate the Debt Financing at or prior to the Closing, and (iv) subject to the last sentence of Section 7.14(b), enforce its rights under the Debt Financing Commitments. Purchaser shall keep Seller informed on a reasonably current basis of any material developments in respect of the Financing Commitments. Prior to the Closing, Purchaser shall not permit terminate the Debt Financing Commitments or agree to, or permit, any amendment or modification to be made toof, or any waiver of any provision or remedy under, the Financing Commitments or other documentation relating to the Financing that (i) would reduce the aggregate amount of the Debt Financing, including by changing the amount of fees to be paid or original issue discount (other than any market flex provisions) from that contemplated in the Debt Financing Commitments (except for any such amendments, modifications to the extent that the amount of the Equity Financing is correspondingly increased or waivers which, individually or in the aggregate, as would not otherwise reasonably be reasonably expected to preventadversely affect Purchaser’s ability to consummate the transactions contemplated by this Agreement), delay (ii) would impose new or impair the availability 75 additional conditions, or otherwise expand, amend or modify any of the Financing under conditions to the Financing Commitments or the consummation receipt of the TransactionsDebt Financing to fund the transactions contemplated by this Agreement in a manner adverse to Purchaser or (iii) could reasonably be expected to adversely affect Purchaser’s ability to consummate the transactions contemplated in this Agreement, in each case without the prior written consent of the Sellers, Seller (which consent shall not be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoingIn addition, Purchaser 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, proper or advisable to obtain the Equity Financing, including using reasonable best efforts to (i) maintain in effect the Equity Financing CommitmentsCommitment, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the such Equity Financing Commitments Commitment that are within its control and otherwise comply with its covenants and other obligations thereundercontrol, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Equity Financing (or a portion thereof) at or prior to the Applicable Closing, and (viv) enforce its rights under the Equity Financing Commitment.
(b) If at any time prior to Closing, notwithstanding the use of reasonable best efforts by Purchaser to satisfy its obligations under Section 7.14(a), any other party to the Debt Financing or the Debt Financing Commitments in the event of a breach (or other failure any definitive financing agreement relating thereto) refuses to fund by a Lender that impedes or delays is unable to fund the Applicable ClosingDebt Financing, in whole or in part, for any reason, Purchaser shall (i) immediately notify Seller of such refusal or inability and the reasons therefor and (viii) use its reasonable best efforts promptly to arrange for alternative financing to replace the Debt Financing to the extent available in amounts and otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially no less favorable to Purchaser, individually as to economic terms and in the aggregate as to all other terms, than is set forth in the Debt Financing Commitments. The alternative financing (a) shall be sufficient to pay, when added with the Equity Financing, all amounts required to be paid by Purchaser pursuant to Articles II and III and (b) shall not include any more (or more onerous) terms and conditions than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments, Purchaser shall use its unless approved by Seller. For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, (i) in order to comply with the standard of reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources set forth in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing 7.14, Purchaser and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser its Affiliates shall not be required to agree threaten, commence or prosecute any legal proceeding against any lender or other party to terms any financing contemplated by the Debt Financing Commitments and conditions (ii) in the case of any breach of the obligations of Purchaser set forth in this Section 7.14, Seller’s and its Affiliates’ sole and exclusive rights and remedies shall be Seller’s rights and remedies set forth in Section 9.9.
(c) Seller shall, and shall cause each Purchased Subsidiary and its and their respective representatives to, provide such cooperation (including with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(btimeliness) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Debt Financing as may be reasonably requested by Purchaser, including (ivi) assist in providing to Purchaser from time to time information regarding the preparation of, entering into and, upon Business and each Purchased Subsidiary and their industry reasonably requested by the lenders providing the Debt Financing and assisting with identification of any portion of such information that constitutes material non-public information and using commercially reasonable prior notice efforts to update any such information to the extent related contained in an offering document if Seller becomes aware of any new material information, (ii) facilitating and promoting negotiations between Purchaser with the existing senior lenders to the participation Seller, participating in meetings, presentations, drafting road shows, due diligence sessions or with prospective lenders and sessions with rating agencies, (iii) assisting with the preparation of materials for rating agency presentations, offering documents, business projections and similar activitiesmarketing documents required in connection with the Debt Financing, syndication (iv) as promptly as practicable, furnishing Purchaser and its Debt Financing Sources information reasonably requested by any of one or more credit agreementsthem in connection with the Debt Financing, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, 76 including by refraining from entering into permitting the prospective lenders and Purchaser and any competing financing transactionsof their agents and representatives to perform field examinations and inventory appraisals required in connection with the Debt Financing, (v) use commercially reasonable efforts permitting the prospective lenders to have evaluate the independent accountants Business’ and each Purchased Subsidiary’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and establishing bank and other accounts in connection with the Sellers provide their reasonable cooperation and assistanceforegoing, (vi) cooperate reasonably with the Lenders’ due diligence, promptly providing quarterly and monthly financial statements (excluding footnotes) to the extent customary available and reasonable, prepared by Seller and each Purchased Subsidiary in the ordinary course of business and (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships as of the Sellers and their AffiliatesClosing Date, taking all corporate actions necessary to authorize the consummation of the Debt Financing; providedprovided that, however, that no requested cooperation pursuant notwithstanding anything to the contrary contained in this Section 7.05(b7.14(c), nothing in this Section 7.14(c) shall delay require any cooperation to the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not extent that it would (A) be required require Seller or any Purchased Subsidiary, as applicable, to waive or amend any terms of this Agreement, agree to pay any commitment commitment, financing or other similar fee, fees or reimburse any expenses with respect to the Debt Financing prior to the Closing Date or (B) have require any Liability under Purchased Subsidiary or any credit officer of any Purchased Subsidiary to take any action with respect to the Debt Financing that is not contingent upon the Closing (including the entry into any agreement, note purchase agreement, indenture, hedging agreement ) or other agreement would require the disclosure of information which would reasonably be expected to jeopardize the attorney-client or document similar privilege of such Purchased Subsidiary. In connection with the offering materials related to the syndication of the Debt Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off)Seller hereby consents to the use of its and each Purchased Subsidiary’s logos, trademarks and service marks. Purchaser shall, without upon request by Seller, promptly reimburse Seller for all reasonable and documented out-ofpocket costs and expenses (including reasonable and documented attorney’s fees) incurred by Seller in connection with the right cooperation of set-off, Seller contemplated by this Section 7.14(c) and shall indemnify and hold harmless Sellers Seller, each Purchased Subsidiary and each of their respective subsidiaries officers, directors, employees, agents, Affiliates and Representatives representatives (any such Person, a “Financing Indemnified Party”) from and against any and all Losses suffered or incurred by any of them in connection with (1) of any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or type in connection with the arrangement or consummation of any Debt Financing except with respect to any written information prepared or provided by Seller or any other Financing Indemnified Party or to the extent such Losses result from the gross negligence or willful misconduct of Seller or any other Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protectionsIndemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Costa Inc)
Financing. (a) Purchaser The Buyer 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, proper or advisable to arrange and obtain the PIPE Financing as promptly as reasonably practicable on a timely basis on the terms and subject only conditions described in the Subscription Agreements, including using its reasonable best efforts to (i) comply with its obligations under the Subscription Agreements, (ii) maintain in effect the Subscription Agreements in accordance with the terms and conditions thereof, (iii) satisfy on a timely basis all conditions and covenants applicable to the conditions contained Buyer set forth in the applicable Subscription Agreements, and (iv) consummate the PIPE Financing Commitmentswhen required pursuant to this Agreement. Purchaser The Buyer shall not permit give the Company prompt written notice upon having knowledge of any amendment breach or modification default by any party to be made to, any of the Subscription Agreements or any waiver termination (or purported termination) of any provision or remedy underof the Subscription Agreements. Other than as set forth in this Section 8.16, the Financing Commitments (except for any such amendmentsBuyer shall not, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which Company (such consent shall not to be unreasonably withheld, conditioned or delayed. Without limiting the generality ), amend, modify, supplement or waive any of the foregoing, Purchaser shall use reasonable best efforts conditions or contingencies to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those funding set forth in the Financing Commitments. Upon Subscription Agreements or any other provision of, or remedies under, the reasonable request of the SellersSubscription Agreements (except as otherwise permitted hereunder), Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating in each case to the Financing. Without limiting the generality of the foregoingextent such amendment, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach modification, supplement or default (or any event or circumstance that, with or without notice, lapse of time or both, could waiver would reasonably be expected to give rise to have the effect of materially adversely affecting in any material breach or default) by Purchaser, or to respect the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) ability of the receipt Buyer to timely consummate the transactions contemplated by this Agreement, including by reducing the aggregate amount of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any the PIPE Financing Commitment or any definitive document related to contemplated in the Financing of any provisions of any Financing Commitment or any definitive document related to Subscription Agreements such that the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will Minimum Available Cash Condition would not be able to obtain satisfied.
(b) If all or any portion of the PIPE Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A)becomes unavailable, (Bi) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser Buyer shall use its reasonable best efforts to arrange and promptly obtain financing as promptly as practicable the PIPE Financing or such portion of the PIPE Financing from alternative sources in an amount sufficient amount, when added to replace any portion of the PIPE Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions that is available, equal to the amount of the PIPE Financing (any alternative source(s) of financing, “Alternative PIPE Financing”) and (ii) in the event that the Buyer is able to obtain any Alternative PIPE Financing, the Buyer shall use its reasonable best efforts to enter into a new Subscription Agreement (each, an “Alternative Subscription Agreement”) that provides for the subscription and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to purchase of Buyer Class A Shares containing terms and conditions with respect to any alternative financing that are, in the aggregate, not materially less favorable in any material respect to Purchaser from the standpoint of the Buyer and the Affiliates of the Buyer party thereto than those set forth in the Financing Commitments.
Subscription Agreements entered into as of the date hereof (b) Prior to as determined in the Applicable Closingreasonable good faith judgment of the Buyer). In such event, the Sellers term “PIPE Financing” as used in this Agreement shall use their commercially reasonable efforts be deemed to provideinclude any Alternative PIPE Financing, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the term “PIPE Investor” as used in this Agreement shall use their commercially reasonable efforts be deemed to cause their Affiliates and their respective officersinclude any person that is subscribing for Buyer Class A Shares under any Alternative Subscription Agreement. For the avoidance of doubt, directors, employees and agents to provide, at Purchaser’s sole cost and expense, if all reasonable cooperation in connection with the arrangement or any portion of the PIPE Financing as or Alternative PIPE Financing becomes unavailable, the Buyer may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain utilize deposits, proceeds or any other amounts from the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the LendersTrust Account and, to the extent reasonably requested by Purchaser acceptable to the Company (such acceptance not to be unreasonably withheld, conditioned or delayed), any additional third party financing to satisfy its financing obligations hereunder (including prior real estate title commitments, surveys, environmental reports and similar informationto satisfy the Minimum Available Cash Condition), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Business Combination Agreement (Aldel Financial Inc.)
Financing. (a) Purchaser Subject to the terms and conditions of this Agreement and the applicable terms and conditions of the Stock Purchase Agreement, Parent shall use its commercially reasonable best efforts to take, take (or cause to be taken, ) all actions and to do, do (or cause to be done) all things, all things necessary, proper or advisable to arrange and to: (i) obtain the Equity Financing as promptly as reasonably practicable contemplated by the Stock Purchase Agreement; (ii) maintain in effect the Stock Purchase Agreement; (iii) satisfy on a timely basis all conditions applicable to Parent set forth in the terms and subject only Stock Purchase Agreement that are within its control; (iv) give such notice to the conditions contained Greenbriar Funds as may be required under the Stock Purchase Agreement in order to permit the consummation of the Equity Financing Commitmentsto occur as soon as practicable following the Company Stockholders Meeting (and in any event not later than the third Business Day after the date on which the Company Stockholders Meeting is held); (v) consummate the Equity Financing contemplated by the Stock Purchase Agreement at or prior to the Closing; and (vi) fully enforce the rights of Parent under the Stock Purchase Agreement. Purchaser Parent shall not, prior to the termination of this Agreement, terminate or agree to terminate the Stock Purchase Agreement and shall not permit amend, alter or waive, or agree to amend, alter or waive, any amendment or modification term of the Stock Purchase Agreement that would reduce the aggregate purchase price to be made to, paid to Parent thereunder or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, that would not reasonably be reasonably expected to prevent, delay or impair prevent the availability closing of the Financing under the Financing Commitments Stock Purchase Agreement or the consummation of the Transactions) Debt Commitment Letter, in each case, without the prior written consent of the SellersCompany (which may be withheld by the Company in its sole discretion). Not later than two Business Days prior to any other amendment, modification or waiver of the Stock Purchase Agreement (other than immaterial amendments that will not have the effect of reducing the aggregate purchase price or delaying or preventing the closing of the transactions thereunder), Parent shall provide the Company with a copy of any such amendment, modification or waiver and shall afford the Company an opportunity to comment thereon. Parent shall promptly (and in any event within one Business Day) notify the Company of (i) the termination (or attempted or purported termination, whether or not valid) of the Stock Purchase Agreement, (ii) the entry of any Order (as defined in the Stock Purchase Agreement), whether or not final or nonappealable, or (iii) any refusal by the Greenbriar Funds to close or any stated intent by the Greenbriar Funds to refuse to close the purchase and sale of the Parent capital stock as contemplated by the Stock Purchase Agreement.
(b) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall, and Parent shall cause each of its Subsidiaries to, use commercially reasonable efforts to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter, after giving effect to the “market flex” terms in the fee letter referred to therein (or on terms which consent shall would not be unreasonably withheld, conditioned reasonably expected to delay or delayed. Without limiting prevent the generality closing of the foregoingMerger, Purchaser shall the Equity Financing or the Debt Financing), and use its respective commercially reasonable best efforts to to
(i) maintain in effect the Debt Commitment Letter and negotiate definitive agreements with respect to the Debt Commitment Letter on the terms and conditions set forth in the Debt Commitment Letter (or on terms which would not be reasonably expected to delay or prevent the closing of the Merger, the Equity Financing Commitmentsor the Debt Financing), (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser Parent and Merger Sub set forth in the Financing Commitments such definitive agreements that are within its control their reasonable control, and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with consummate the Lenders and other third parties and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) Debt Commitment Letter at or prior to the Applicable Closing. If all conditions in the Debt Commitment Letter (other than the availability of funding of any of the Equity Financing) have been satisfied or, (v) upon funding will be satisfied, each of Parent and Merger Sub shall use its commercially reasonable efforts to cause such lenders and the other Persons providing such Debt Financing to fund on the Closing Date the Debt Financing required to consummate the transactions expressly contemplated by this Agreement and otherwise enforce its rights under the Financing Commitments Agreements.
(c) Neither Parent nor Merger Sub shall, prior to the termination of this Agreement, terminate or agree to terminate the Debt Commitment Letter without the prior written consent of the Company (which may be withheld by the Company in its sole discretion) nor shall either amend, alter or waive, or agree to amend, alter or waive, any term of the Debt Commitment Letter or any provision of the fee letter referenced in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating Debt Commitment Letter to the Financing. Without limiting the generality of the foregoingextent any such amendment, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach alteration, or default (or any event or circumstance that, with or without notice, lapse of time or both, could waiver would reasonably be expected to give rise to any material breach delay or default) by Purchaserprevent the Closing, or to without the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) prior written consent of the receipt of any written notice or other written communication from any Person with respect to any Company (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to which may be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated withheld by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but Company in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (Aits sole discretion), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant Parent and Merger Sub may replace the Debt Commitment Letter without the need to obtain the consent of the Company so long as (i) the terms would not be reasonably expected to delay or prevent the Closing and (ii) the conditions to the Debt Financing set forth in the Debt Commitment Letter as of the date of this Section 7.05(bAgreement would not be expanded in a manner that would reasonably be expected to delay or prevent the Closing; and in any such event, Parent shall disclose to the Company its intention to obtain such alternative financing, shall keep the Company informed of the terms thereof and shall deliver to the Company final drafts of the commitment letter (the “New Debt Commitment Letter”) providing for such alternative financing. The term “Debt Commitment Letter” shall delay be deemed to refer to the Applicable Closing, New Debt Commitment Letter from and after such time as it replaces the original Debt Commitment Letter. The term “Debt Financing” as used herein shall be deemed to mean the Debt Financing contemplated by the Debt Commitment Letter to the extent not so superseded at the time in question and the New Debt Commitment Letter to the extent then in effect. Parent shall promptly (and in any event within one Business Day) notify the Company of the expiration or unreasonably interfere termination of the Debt Commitment Letter and its replacement with the ongoing operations of Sellers and the Sellers shall not New Debt Commitment Letter (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-offif applicable). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser Each of Parent and Acquisition Sub shall use use, and shall cause its Subsidiaries to 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, proper or advisable to arrange arrange, obtain and obtain consummate the Financing as promptly as reasonably practicable on the terms and subject only conditions (including, to the conditions contained extent required, the full exercise of any “flex” provisions) described in the Financing Commitments. Purchaser Commitment Letters, and shall not permit any amendment amendment, supplement, replacement or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any Commitment Letters if such amendmentsamendment, modifications supplement, replacement modification or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to waiver (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on Commitment Letters, reduces (or could have the terms and subject only to effect of reducing) the conditions contemplated by the Financing Commitments, (iv) consummate aggregate amount of the Financing (or a portion thereof) at or prior to including by increasing the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event amount of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions fees to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: paid or original issue discount unless (A) upon becoming aware of any material breach the Debt Financing or default (the Equity Financing is increased by a corresponding amount or any event the Debt Financing is otherwise made available at Closing to fund such fees or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; original issue discount and (B) after giving effect to such reduction and any of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance transactions referred to in clause (A) above, the representation and warranty set forth in Section 4.6 shall be true and correct in all material respects), (B) or (Cii) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any imposes new or additional conditions and without or otherwise expands, amends or modifies any adverse amendment of the conditions to existing the Financing in a manner that makes them more onerous to satisfy on the Closing Date, or (iii) expands, amends or modifies any other provision of the Financing Commitment Letters, in a manner that would reasonably be expected to delay or prevent or make less likely the funding of the full amount of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date (provided that, and Purchaser’s obligations under subject to compliance with the other provisions of this Section 7.05(a5.12(a), Parent and Acquisition Sub may amend the Debt Commitment Letter to add additional lenders, arrangers, bookrunners and agents and, subject to compliance with Section 5.12(b) below, Parent may replace all or any part of the Debt Financing with Alternate Financing). Parent shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior promptly deliver to the Applicable ClosingCompany copies of any amendment, supplement, waiver, consent, modification or replacement in respect of the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provideDebt Commitment Letter and, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement written request of the Financing as may be reasonably requested by Purchaser and that is customary in connection Company, provide the Company with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other such information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Merger Agreement (Monogram Residential Trust, Inc.)
Financing. (a) Purchaser Parent 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, proper or advisable to arrange and obtain the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Debt Financing Commitments. Purchaser Commitments and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, under the Financing Commitments if such amendment, modification or waiver would (except for x) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount), or (y) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that would reasonably be expected to (I) delay or prevent the Closing Date, (II) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (III) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. Subject to the limitations set forth in Section 5.2(e), Parent and Merger Sub may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date hereof, if the addition of such amendments, modifications or waivers whichadditional parties, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing financing under the Debt Financing Commitments or the consummation of the Transactionstransactions contemplated by this Agreement. For purposes of this Section 6.14, references to "Financing" shall include the financing contemplated by the Financing Commitments as permitted to be amended or modified by this Section 6.14(a) without the prior written consent of the Sellers, which consent and references to "Financing Commitments" or "Debt Financing Commitments" shall not include such documents as permitted to be unreasonably withheld, conditioned amended or delayedmodified by this Section 6.14(a). Without limiting the generality of the foregoing, Purchaser Parent and Merger Sub shall use their reasonable best efforts to (i) maintain in effect the Debt Financing CommitmentsCommitments until the transactions contemplated by this Agreement are consummated, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Purchaser Parent and Merger Sub in the Debt Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause by consummating the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.financing
Appears in 1 contract
Sources: Merger Agreement (Nbty Inc)
Financing. (a) The Purchaser (i) shall use its reasonable best efforts Commercially Reasonable Efforts to take, or cause to be taken, all actions within its control and to do, or cause to be done, all things within its control necessary, proper or reasonably advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained described in the Financing Commitments. Purchaser Underwriting Agreement, and (ii) shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy underunder the Underwriting Agreement if such amendment, modification, consent or waiver (X) materially reduces the aggregate proceeds received by the Purchaser from the Financing Commitments (except for including by materially increasing the amount of fees to be paid) or (Y) imposes new or additional conditions or otherwise expands, amends or modifies any such amendmentsof the conditions to the receipt of Financing, modifications or waivers whichotherwise expands, individually amends or modifies any other provision of the Underwriting Agreement, in the aggregate, a manner that would not reasonably be reasonably expected to prevent, materially delay or impair prevent or make less likely the availability funding of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior satisfaction of the conditions to the Applicable Closing, (vFinancing) on the Closing Date or materially adversely impacts the ability of the Purchaser to enforce its rights under against other parties to the Financing Commitments in Underwriting Agreement. The Seller acknowledges and agrees that the event of “bought deal letter” provides only a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request summary of the Sellers, Purchaser shall inform the Sellers terms of the status of its efforts to arrange the Financing and any material developments relating will be replaced by an “underwriting agreement” including additional particulars concerning the Financing and the entering into of such “underwriting agreement” and other agreements or documents necessary to implement the Financing. Without limiting the generality of the foregoing, Financing will not constitute a default under this Agreement..
(b) The Purchaser shall give the Sellers Seller prompt notice: , (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to the Underwriting Agreement of which the Purchaser becomes aware and (B) of the receipt by the Purchaser of any Financing Commitment written notice or other written communication from any definitive document related underwriter party to the Financing Underwriting Agreement with respect to any breach, default, termination or repudiation by any party to the Underwriting Agreement of any provisions of any Financing Commitment the Underwriting Agreement or any definitive document related to the Financing or (y) material dispute or disagreement between or among any the parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the FinancingUnderwriting Agreement. As soon as reasonably practicable, but in any event within five two (52) Business Days after of the date the Sellers deliver to Seller delivers the Purchaser a written request, the Purchaser shall provide any information reasonably requested by the Sellers Seller relating to any circumstance referred to in clause (A), (B) or (CB) of the immediately preceding sentence. Purchaser .
(c) The Seller and the Corporation shall refrain from takinguse Commercially Reasonable Efforts to cause its affiliates, directly or indirectlydirectors, officers, employees and advisors (including financial advisors and legal counsel) to provide, at the Purchaser’s request, any action that is co-operation reasonably likely requested by the Purchaser in connection with the Financing, including (a) providing the Purchaser with all information regarding the Corporation, including any pro forma financial statements as may be required to result be included in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions a prospectus relating to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior co-operating with the marketing efforts undertaken by the Purchaser or the Financing underwriters; (c) making senior management of the Corporation and Seller available to the Applicable Closingparticipate in due diligence sessions, the Sellers shall use their commercially reasonable efforts (d) responding to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation requests from any Governmental Authority in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information prospectus relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viiie) assist Purchaser and the Lenders otherwise taking, or refraining from taking, such actions that are likely to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall hinder or delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Sources: Share Purchase Agreement (Enthusiast Gaming Holdings Inc. / Canada)
Financing. (a) Purchaser shall use its reasonable best efforts to takeUnless, or cause to be taken, all actions and to dothe extent, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only Buyer shall have demonstrated to the conditions contained in reasonable satisfaction of Seller that Buyer shall have sufficient cash from other sources (including by reason of capital markets, securities or other financing transactions) available to satisfy its cash payment obligations under this Agreement, from and after the Financing Commitments. Purchaser execution of this Agreement, Buyer shall not permit any amendment or modification to be made toto the Commitment Letter, if such amendment or any waiver of any provision or remedy under, modification (A) reduces the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability aggregate amount of the Financing under below the amount required together with the other sources to pay the Required Funding Amount or (B) imposes additional conditions or otherwise amends any of the conditions to the receipt of the Financing Commitments in a manner that could reasonably be expected to (I) prevent the Closing from occurring prior to the Termination Date, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) materially less likely to occur or (III) materially impact the ability of Buyer to enforce its rights against other parties to the Commitment Letter or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect thereto. For the avoidance of doubt, but subject to the Financing on foregoing, Buyer may amend, supplement, modify or replace the terms and subject only Commitment Letter as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the conditions contemplated by Commitment Letter as of the Financing Commitmentsdate of this Agreement, (ivy) consummate to increase the Financing amount of indebtedness or (z) to replace all or a portion thereof) at or prior to of the Applicable Closing, (v) enforce its rights facility committed under the Financing Commitments Commitment Letter as in effect as of the event of date hereof with one or more new facilities under such Commitment Letter or under any new commitment letter or facility (any such new commitment or facility, a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing“Replacement Facility”); provided, that Purchaser the terms of such Replacement Facility shall not comply with clauses (A) and (B) above. Promptly following the execution of a Replacement Facility by Buyer, Buyer shall notify the Seller to such effect and shall promptly provide a fully executed copy of such Replacement Facility and any related agreements (which may be required redacted in a customary manner). For purposes of this Agreement, (1) the term “Financing” shall be deemed to agree include the financing contemplated by the Commitment Letter as amended, modified or replaced pursuant to terms and conditions that arethis Section 6.23 (including any Replacement Facility, any Alternative Financing and, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request case of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of PurchaserSection 6.23(d), any other party offering or sale of debt or equity securities the proceeds of which are intended to be used to satisfy the obligations under this Agreement), and (2) the term “Commitment Letter” shall be deemed to include the Commitment Letter as may be amended, modified or replaced pursuant to this Section 6.23, any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person commitment letters with respect to any (x) actual or potential breachReplacement Facility, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions letters with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing CommitmentsAlternative Financing.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Financing. (a) Purchaser Buyer and Borrower shall use its their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Financing as promptly as reasonably practicable on the terms and subject only conditions described in the applicable Commitment Letter. ▇▇▇▇▇▇▇▇ shall contribute the proceeds of the Debt Financing to Buyer promptly upon receipt thereof. Subject to the terms and conditions contained in the Financing Commitments. Purchaser of this Agreement, neither Buyer nor Borrower shall not permit agree to any termination, rescission, replacement or superseding of, any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for applicable Commitment Letter or any related fee letter, if such amendmentstermination, modifications rescission, superseding, replacement, amendment, modification or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to waiver (i) maintain in effect reduces, either directly or indirectly, the amount of the Equity Financing Commitmentsor Debt Financing, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable as applicable, to Purchaser in the Financing Commitments an aggregate amount that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender would be less than an amount that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) would be required to consummate the transactions contemplated by this Agreement, (ii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner, that taken as a whole, would reasonably be consummated at expected to (A) prevent the Applicable Closing or (including taking enforcement action B) make the consummation of the Financing or satisfaction (or waiver) of the conditions to cause obtaining the Lenders Financing less likely to provide occur, or (iii) adversely affects Buyer’s or the Financing)Borrower’s ability to enforce their respective rights against any of the other Persons party to the applicable Commitment Letter, in each case, relative to Buyer’s or the Borrower’s respective ability to so enforce their respective rights against such Persons party to such applicable Commitment Letter in effect on the Execution Date; provided, that Purchaser Borrower shall not be required have the right to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any substitute other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if debt financing for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter from the same or alternative Financing Commitments or Sources (including, for the definitive documents related avoidance of doubt, in connection with any Alternative Financing); provided, further, that, in each case, such substitution shall not (1) reasonably be expected to the Financing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A)) prevent the Closing, or (B) or (C) of make the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Applicable Closing, the Sellers shall use their commercially reasonable efforts to provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the preparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Applicable Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur in any respect, (2) materially and adversely affect Borrower’s ability to enforce its rights against any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.other
Appears in 1 contract
Sources: Purchase and Sale Agreement (Kinetik Holdings Inc.)