Common use of Actions with Respect to Financing Clause in Contracts

Actions with Respect to 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 consummate and obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter, including by using reasonable best efforts to (i) maintain in effect the Debt Commitment Letter on the terms and conditions set forth in the Debt Commitment Letter (or on terms not materially less favorable, in the aggregate, to the Purchaser, taken as a whole (including with respect to the conditionality thereof), than the terms and conditions in the Debt Commitment Letter), (ii) negotiate definitive agreements with respect to the Debt Financing on terms and conditions (including, as necessary, the “flex” provisions contained in any fee letter) contemplated by the Debt Commitment Letters (any such agreements, the “Debt Financing Agreements”), (iii) ensure the accuracy of all representations and warranties of Purchaser set forth in the Debt Commitment Letter or Debt Financing Agreements, (iv) comply with all covenants and agreements of Purchaser set forth in the Debt Commitment Letter or Debt Financing Agreements, (v) satisfy on a timely basis all conditions applicable to the Debt Financing set forth in the Debt Commitment Letter or Debt Financing Agreements, and (vi) upon satisfaction of such conditions and the other conditions set forth in Section 6.1 and Section 6.2 and (other than those conditions that by their nature are to be satisfied at the Closing, subject to the fulfillment or waiver of those conditions), consummate the Debt Financing at or prior to the Closing (and in any event prior to the Termination Date). Notwithstanding anything to the contrary contained herein, Purchaser shall have no obligation to formally seek to enforce its rights under the Debt Commitment Letter or any Debt Financing Agreement (including any obligation to file suit against the lenders thereunder). (b) Purchaser shall promptly inform Chemtura in reasonable detail regarding all material activity and timing considerations concerning the Debt Financing, including any material adverse change with respect to the Debt Financing. Without limiting the foregoing, Purchaser agrees to notify Chemtura promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Purchaser becomes aware of any material breach or default by any party to the Debt Commitment Letter or any Debt Financing Agreements, (iii) a counterparty indicates in writing or orally 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 therein, (iii) Purchaser, any of its Affiliates or any other Loan Party (as defined in the Purchaser Credit Agreement) notifies the Administrative Agent and any Lender (each as defined in the Purchaser Credit Agreement) that an officer of a Loan Party has obtained knowledge of (x) the occurrence of any Default (as defined in the Purchaser Credit Agreement), or (y) any matter that has a resulted or could reasonably be expected to result in a Material Adverse Effect (as defined in the Purchaser Credit Agreement), and (iv) Purchaser receives any communication from the Administrative Agent or any Lender (each as defined in the Purchaser Credit Agreement) that relates in any respect to Purchaser’s ability to consummate the transactions contemplated by this Agreement. Prior to the Closing, if Purchaser, any of its Affiliates or any Loan Party delivers any Compliance Certificate (as defined in the Purchaser Credit Agreement) to the Administrative Agent (as defined in the Purchaser Credit Agreement), Purchaser shall cause a true and complete copy of such Compliance Certificate to be promptly (and in any event within one Business Day following delivery to the Administrative Agent) delivered to Chemtura. Purchaser shall not, nor shall it permit any of its Affiliates to, without the prior written consent of Sellers, take any action or enter into any transaction that could reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing including, without limitation, creating, incurring, assuming or guaranteeing any Indebtedness, other than pursuant to the Dollar Revolving Credit Facility (as defined in the Purchaser Credit Agreement) or the Multicurrency Revolving Credit Facility (as defined in the Purchaser Credit Agreement), in each case, in the Ordinary Course of Business. Without the prior written consent of Sellers, Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, modification, joinder, termination or waiver (A) reduces the aggregate amount of the Debt Financing to be funded on the Closing, (B) expand upon in any material respect the conditions precedent or contingencies to the funding on the Closing Date of the Debt Financing as set forth in the Financial Letters, or (C) prevent, impede or delay the consummation of the transactions contemplated by this Agreement. Purchaser shall promptly deliver to Sellers copies of any amendment, modification, waiver, joinder, termination or replacement of the Debt Commitment Letter or the Debt Financing Agreements, provided, that the amount of fees, “market flex” provisions, pricing terms and pricing caps set forth in any fee letters delivered to Sellers may be redacted in a customary manner. (c) Notwithstanding anything to the contrary contained herein, (i) Purchaser shall have the right to substitute other debt or equity financing for all or any portion of the Debt Financing from the same or alternative financing sources, and (ii) if any portion or all of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Purchaser shall use its reasonable best efforts to arrange to promptly obtain such Debt Financing from alternative sources, in the case of each of clauses (i) and (ii), on terms not less favorable to Purchaser (including with respect to the conditionality thereof) and which would not have any of the effects described in clauses (A)-(D) of Section 5.18(b), in an amount sufficient, when added to the portion of the Debt Financing that is available to pay in cash all amounts required to be paid by Purchaser in connection with the transactions contemplated by this Agreement (“Alternative Financing”), and, in the case of each of clauses (i) and (ii), Purchaser shall obtain a new financing commitment letter (the “Alternative Commitment Letter”) and a new definitive agreement with respect thereto (the “Alternative Financing Agreement”). In such event, the term “Debt Financing” as used in this Agreement (other than in this Section 5.18(c)) shall be deemed to include any Alternative Financing, the term “Debt Commitment Letter” as used in this Agreement (other than in this Section 5.18(c)) shall be deemed to include any Alternative Commitment Letter, and the term “Debt Financing Agreement” as used in this Agreement (other than in this Section 5.18(c)) shall be deemed to include any Alternative Financing Agreement.

Actions with Respect to Financing. (a) Purchaser The Buyer and its Affiliates shall use its reasonable best efforts to take, or cause perform all obligations required to be taken, all actions performed by them in accordance with and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter, including by using reasonable best efforts to (i) maintain in effect the Debt Commitment Letter on the terms and conditions set forth in the Debt Commitment Letter (or on terms not materially less favorable, in the aggregate, pursuant to the PurchaserCommitment Letters, taken as a whole (including with respect to shall maintain the conditionality thereof), than the terms same in full force and conditions in the Debt Commitment Letter), (ii) negotiate definitive agreements with respect to the Debt Financing on terms and conditions (including, as necessary, the “flex” provisions contained in any fee letter) contemplated by the Debt Commitment Letters (any such agreements, the “Debt Financing Agreements”), (iii) ensure the accuracy of all representations and warranties of Purchaser set forth in the Debt Commitment Letter or Debt Financing Agreements, (iv) comply with all covenants and agreements of Purchaser set forth in the Debt Commitment Letter or Debt Financing Agreements, (v) satisfy on a timely basis all conditions applicable to the Debt Financing set forth in the Debt Commitment Letter or Debt Financing Agreementseffect, and (vi) upon satisfaction of such conditions and the other conditions set forth in Section 6.1 and Section 6.2 and (other than those conditions that by their nature are to be satisfied at the Closing, subject to the fulfillment or waiver of those conditions), consummate the Debt Financing at or prior to the Closing (and in any event prior to the Termination Date). Notwithstanding anything to the contrary contained herein, Purchaser shall have no obligation to formally seek to enforce its rights under the Debt Commitment Letter or any Debt Financing Agreement (including any obligation to file suit against the lenders thereunder). (b) Purchaser shall promptly inform Chemtura in reasonable detail regarding all material activity and timing considerations concerning the Debt Financing, including any material adverse change with respect to the Debt Financing. Without limiting the foregoing, Purchaser agrees to notify Chemtura promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Purchaser becomes aware of any material breach or default by any party to the Debt Commitment Letter or any Debt Financing Agreements, (iii) a counterparty indicates in writing or orally 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 therein, (iii) Purchaser, any of its Affiliates or any other Loan Party (as defined in the Purchaser Credit Agreement) notifies the Administrative Agent and any Lender (each as defined in the Purchaser Credit Agreement) that an officer of a Loan Party has obtained knowledge of (x) the occurrence of any Default (as defined in the Purchaser Credit Agreement), or (y) any matter that has a resulted or could reasonably be expected to result in a Material Adverse Effect (as defined in the Purchaser Credit Agreement), and (iv) Purchaser receives any communication from the Administrative Agent or any Lender (each as defined in the Purchaser Credit Agreement) that relates in any respect to Purchaser’s ability to consummate the transactions contemplated by this Agreement. Prior to the Closing, if Purchaser, any of its Affiliates or any Loan Party delivers any Compliance Certificate (as defined in the Purchaser Credit Agreement) to the Administrative Agent (as defined in the Purchaser Credit Agreement), Purchaser shall cause a true and complete copy of such Compliance Certificate to be promptly (and in any event within one Business Day following delivery to the Administrative Agent) delivered to Chemtura. Purchaser shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Sellers, take amend, terminate or waive any action provisions under such Commitment Letters if such amendment, termination or enter into waiver would adversely affect in any transaction that could reasonably be expected to impair, delay or prevent consummation of all or any portion material respect the likelihood of the Debt Financing including, without limitation, creating, incurring, assuming or guaranteeing any Indebtedness, other than pursuant Buyer and/or the Transferred Companies receiving the funds contemplated by the Commitment Letters prior to the Dollar Revolving Credit Facility Expiration Date. The Buyer shall from time to time provide such information as the Sellers may reasonably request regarding the status of the financing for the transactions contemplated hereby and related negotiations. (as defined b) The Buyer shall provide prompt written notice to the Sellers following its receipt of notification by any financing source under the Debt Commitment Letter of such source's refusal or intended refusal to provide the financing described in the Purchaser Credit Agreement) or the Multicurrency Revolving Credit Facility (as defined in the Purchaser Credit Agreement)Debt Commitment Letter and, in each case, in the Ordinary Course of Businessstated reasons therefor (if any). Without In any such event, the prior written consent of Sellers, Purchaser Buyer shall not permit any amendment or modification use reasonable commercial efforts to be made to, or any waiver of any provision under, arrange a substitute for such financing on terms no less favorable to the Buyer than under the Debt Commitment Letter if such amendment, modification, joinder, termination or waiver (A) reduces the aggregate amount of the Debt Financing to be funded on the Closing, (B) expand upon in any material respect the conditions precedent or contingencies to the funding on the Closing Date of the Debt Financing as set forth in the Financial Letters, or (C) prevent, impede or delay the consummation of the transactions contemplated by this Agreement. Purchaser shall promptly deliver to Sellers copies of any amendment, modification, waiver, joinder, termination or replacement of the Debt Commitment Letter or the Debt Financing Agreements, provided, that the amount of fees, “market flex” provisions, pricing terms and pricing caps set forth in any fee letters delivered to Sellers may be redacted in a customary manneras practicable. (c) Notwithstanding anything The Sellers shall cooperate fully with the Buyer and its Affiliates in connection with the fulfillment of its obligations under this Section 6.14 and the fulfillment of the condition set forth in Section 4.7, including without limitation, causing the Sellers, the Transferred Companies and their respective officers, employees, advisers and authorized representatives to the contrary contained herein, (i) Purchaser assist with the preparation of such offering memoranda and documentation as is required under the Commitment Letters, (ii) complete the work necessary to permit the Transferred Companies to obtain the Transferred Companies' Financials on a schedule that is consistent with the schedule for Nortek receiving its audited financial statements for such year, and (iii) meet with potential lenders and financing sources. (d) The Sellers shall have provide such assistance to and cooperate with their independent auditors as such independent auditors may reasonably request to enable them to complete the right to substitute other debt or equity financing for all or any portion preparation of the Debt Financing from Transferred Companies' Financials, and to render an unqualified opinion on the same Transferred Companies' Financials. Upon the request of the Buyer, the Sellers shall (i) use their commercially reasonable efforts to cause their independent auditors to deliver to the Securities and Exchange Commission (the "SEC") any auditor's consent that is required to be included in any filing with the SEC that includes or alternative financing sources, incorporates by reference the Transferred Companies' Financials and (ii) to the extent the Buyer or any of its Affiliates conducts or intends to conduct an offering of securities (and if any portion the registration statement, prospectus or all offering memorandum for such offering includes or incorporates by reference the financial statements relating to the Transferred Companies), use their commercially reasonable efforts to cause their independent auditors to deliver a letter containing statements and information of the Debt Financing becomes unavailable on type ordinarily included in accountant's "comfort letters" with respect to the terms financial statements and conditions contemplated financial information relating to the Transferred Companies contained or incorporated by reference in the Debt Commitment Letter, Purchaser shall use its reasonable best efforts any such document relating to arrange to promptly obtain any such Debt Financing from alternative sourcesoffering, in the case of each of clauses (i) and (ii)) above, on terms not less favorable to Purchaser (including with respect to within the conditionality thereof) and which would not have time period reasonably requested by the Buyer or any of the effects described in clauses (A)-(D) of Section 5.18(b)its Affiliates. In addition, in an amount sufficient, when added to the portion of the Debt Financing that is available to pay in cash all amounts connection with any SEC filing required to be paid made by Purchaser in connection with the transactions contemplated by this Agreement Buyer or any of its Affiliates (“Alternative Financing”or any SEC review of such filing), andthe Sellers shall permit the Buyer and its authorized representatives to have reasonable access, during normal business hours and upon reasonable advance notice, to the properties, books and records of the Sellers and its Affiliates relating to the Transferred Companies solely for the purpose of preparing any such SEC filing or responding to SEC questions, comments or requests on such SEC filing; PROVIDED, HOWEVER, that any information obtained by the Buyer and its authorized representatives hereunder shall be governed by the Confidentiality Agreement and any other reasonable confidentiality agreement requested by the Sellers. The Buyer shall be solely responsible for all reasonable costs and expenses incurred by the Sellers in the case of each of clauses (i) and (ii), Purchaser shall obtain a new financing commitment letter (the “Alternative Commitment Letter”) and a new definitive agreement with respect thereto (the “Alternative Financing Agreement”). In such event, the term “Debt Financing” as used in this Agreement (other than in performing their obligations under this Section 5.18(c6.14(d) (including all reasonable fees and disbursements of the Sellers' independent auditors)) shall be deemed to include any Alternative Financing, the term “Debt Commitment Letter” as used in this Agreement (other than in this Section 5.18(c)) shall be deemed to include any Alternative Commitment Letter, and the term “Debt Financing Agreement” as used in this Agreement (other than in this Section 5.18(c)) shall be deemed to include any Alternative Financing Agreement.

Actions with Respect to Financing. (a) Purchaser The Buyer and its Affiliates shall use its reasonable best efforts to take, or cause perform all obligations required to be taken, all actions performed by them in accordance with and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter, including by using reasonable best efforts to (i) maintain in effect the Debt Commitment Letter on the terms and conditions set forth in the Debt Commitment Letter (or on terms not materially less favorable, in the aggregate, pursuant to the PurchaserCommitment Letters, taken as a whole (including with respect to shall maintain the conditionality thereof), than the terms same in full force and conditions in the Debt Commitment Letter), (ii) negotiate definitive agreements with respect to the Debt Financing on terms and conditions (including, as necessary, the “flex” provisions contained in any fee letter) contemplated by the Debt Commitment Letters (any such agreements, the “Debt Financing Agreements”), (iii) ensure the accuracy of all representations and warranties of Purchaser set forth in the Debt Commitment Letter or Debt Financing Agreements, (iv) comply with all covenants and agreements of Purchaser set forth in the Debt Commitment Letter or Debt Financing Agreements, (v) satisfy on a timely basis all conditions applicable to the Debt Financing set forth in the Debt Commitment Letter or Debt Financing Agreementseffect, and (vi) upon satisfaction of such conditions and the other conditions set forth in Section 6.1 and Section 6.2 and (other than those conditions that by their nature are to be satisfied at the Closing, subject to the fulfillment or waiver of those conditions), consummate the Debt Financing at or prior to the Closing (and in any event prior to the Termination Date). Notwithstanding anything to the contrary contained herein, Purchaser shall have no obligation to formally seek to enforce its rights under the Debt Commitment Letter or any Debt Financing Agreement (including any obligation to file suit against the lenders thereunder). (b) Purchaser shall promptly inform Chemtura in reasonable detail regarding all material activity and timing considerations concerning the Debt Financing, including any material adverse change with respect to the Debt Financing. Without limiting the foregoing, Purchaser agrees to notify Chemtura promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Purchaser becomes aware of any material breach or default by any party to the Debt Commitment Letter or any Debt Financing Agreements, (iii) a counterparty indicates in writing or orally 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 therein, (iii) Purchaser, any of its Affiliates or any other Loan Party (as defined in the Purchaser Credit Agreement) notifies the Administrative Agent and any Lender (each as defined in the Purchaser Credit Agreement) that an officer of a Loan Party has obtained knowledge of (x) the occurrence of any Default (as defined in the Purchaser Credit Agreement), or (y) any matter that has a resulted or could reasonably be expected to result in a Material Adverse Effect (as defined in the Purchaser Credit Agreement), and (iv) Purchaser receives any communication from the Administrative Agent or any Lender (each as defined in the Purchaser Credit Agreement) that relates in any respect to Purchaser’s ability to consummate the transactions contemplated by this Agreement. Prior to the Closing, if Purchaser, any of its Affiliates or any Loan Party delivers any Compliance Certificate (as defined in the Purchaser Credit Agreement) to the Administrative Agent (as defined in the Purchaser Credit Agreement), Purchaser shall cause a true and complete copy of such Compliance Certificate to be promptly (and in any event within one Business Day following delivery to the Administrative Agent) delivered to Chemtura. Purchaser shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Sellers, take amend, terminate or waive any action provisions under such Commitment Letters if such amendment, termination or enter into waiver would adversely affect in any transaction that could reasonably be expected to impair, delay or prevent consummation of all or any portion material respect the likelihood of the Debt Financing including, without limitation, creating, incurring, assuming or guaranteeing any Indebtedness, other than pursuant Buyer and/or the Transferred Companies receiving the funds contemplated by the Commitment Letters prior to the Dollar Revolving Credit Facility Expiration Date. The Buyer shall from time to time provide such information as the Sellers may reasonably request regarding the status of the financing for the transactions contemplated hereby and related negotiations. (as defined b) The Buyer shall provide prompt written notice to the Sellers following its receipt of notification by any financing source under the Debt Commitment Letter of such source’s refusal or intended refusal to provide the financing described in the Purchaser Credit Agreement) or the Multicurrency Revolving Credit Facility (as defined in the Purchaser Credit Agreement)Debt Commitment Letter and, in each case, in the Ordinary Course of Businessstated reasons therefor (if any). Without In any such event, the prior written consent of Sellers, Purchaser Buyer shall not permit any amendment or modification use reasonable commercial efforts to be made to, or any waiver of any provision under, arrange a substitute for such financing on terms no less favorable to the Buyer than under the Debt Commitment Letter if such amendment, modification, joinder, termination or waiver (A) reduces the aggregate amount of the Debt Financing to be funded on the Closing, (B) expand upon in any material respect the conditions precedent or contingencies to the funding on the Closing Date of the Debt Financing as set forth in the Financial Letters, or (C) prevent, impede or delay the consummation of the transactions contemplated by this Agreement. Purchaser shall promptly deliver to Sellers copies of any amendment, modification, waiver, joinder, termination or replacement of the Debt Commitment Letter or the Debt Financing Agreements, provided, that the amount of fees, “market flex” provisions, pricing terms and pricing caps set forth in any fee letters delivered to Sellers may be redacted in a customary manneras practicable. (c) Notwithstanding anything The Sellers shall cooperate fully with the Buyer and its Affiliates in connection with the fulfillment of its obligations under this Section 6.14 and the fulfillment of the condition set forth in Section 4.7, including without limitation, causing the Sellers, the Transferred Companies and their respective officers, employees, advisers and authorized representatives to the contrary contained herein, (i) Purchaser assist with the preparation of such offering memoranda and documentation as is required under the Commitment Letters, (ii) complete the work necessary to permit the Transferred Companies to obtain the Transferred Companies’ Financials on a schedule that is consistent with the schedule for Nortek receiving its audited financial statements for such year, and (iii) meet with potential lenders and financing sources. (d) The Sellers shall have provide such assistance to and cooperate with their independent auditors as such independent auditors may reasonably request to enable them to complete the right to substitute other debt or equity financing for all or any portion preparation of the Debt Financing from Transferred Companies’ Financials, and to render an unqualified opinion on the same Transferred Companies’ Financials. Upon the request of the Buyer, the Sellers shall (i) use their commercially reasonable efforts to cause their independent auditors to deliver to the Securities and Exchange Commission (the “SEC”) any auditor’s consent that is required to be included in any filing with the SEC that includes or alternative financing sources, incorporates by reference the Transferred Companies’ Financials and (ii) to the extent the Buyer or any of its Affiliates conducts or intends to conduct an offering of securities (and if any portion the registration statement, prospectus or all offering memorandum for such offering includes or incorporates by reference the financial statements relating to the Transferred Companies), use their commercially reasonable efforts to cause their independent auditors to deliver a letter containing statements and information of the Debt Financing becomes unavailable on type ordinarily included in accountant’s “comfort letters” with respect to the terms financial statements and conditions contemplated financial information relating to the Transferred Companies contained or incorporated by reference in the Debt Commitment Letter, Purchaser shall use its reasonable best efforts any such document relating to arrange to promptly obtain any such Debt Financing from alternative sourcesoffering, in the case of each of clauses (i) and (ii)) above, on terms not less favorable to Purchaser (including with respect to within the conditionality thereof) and which would not have time period reasonably requested by the Buyer or any of the effects described in clauses (A)-(D) of Section 5.18(b)its Affiliates. In addition, in an amount sufficient, when added to the portion of the Debt Financing that is available to pay in cash all amounts connection with any SEC filing required to be paid made by Purchaser in connection with the transactions contemplated by this Agreement Buyer or any of its Affiliates (“Alternative Financing”or any SEC review of such filing), andthe Sellers shall permit the Buyer and its authorized representatives to have reasonable access, during normal business hours and upon reasonable advance notice, to the properties, books and records of the Sellers and its Affiliates relating to the Transferred Companies solely for the purpose of preparing any such SEC filing or responding to SEC questions, comments or requests on such SEC filing; provided, however, that any information obtained by the Buyer and its authorized representatives hereunder shall be governed by the Confidentiality Agreement and any other reasonable confidentiality agreement requested by the Sellers. The Buyer shall be solely responsible for all reasonable costs and expenses incurred by the Sellers in the case of each of clauses (i) and (ii), Purchaser shall obtain a new financing commitment letter (the “Alternative Commitment Letter”) and a new definitive agreement with respect thereto (the “Alternative Financing Agreement”). In such event, the term “Debt Financing” as used in this Agreement (other than in performing their obligations under this Section 5.18(c6.14(d) (including all reasonable fees and disbursements of the Sellers’ independent auditors)) shall be deemed to include any Alternative Financing, the term “Debt Commitment Letter” as used in this Agreement (other than in this Section 5.18(c)) shall be deemed to include any Alternative Commitment Letter, and the term “Debt Financing Agreement” as used in this Agreement (other than in this Section 5.18(c)) shall be deemed to include any Alternative Financing Agreement.