Assistance with Financing. (a) The Seller Parties acknowledge that the Buyer Parties intend to pursue the Anticipated Financing and agree to provide such assistance (and to cause their respective Representatives to provide such assistance) with the Financing as is reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10. (b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives. (c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hudson Pacific Properties, Inc.)
Assistance with Financing. (a) The Seller Parties acknowledge that the Buyer Parties intend Company agrees to pursue the Anticipated Financing and agree to provide such assistance (use its commercially reasonable efforts to, and to cause their respective Representatives its Subsidiaries to, cooperate with Merger Sub, Merger Sub’s shareholders, and the arrangers, lenders and advisors to provide such assistance) with the Financing as is reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance by the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; (ii) participation in and assistance with the preparation of rating agency presentations and meetings with rating agencies; (iii) delivery to the Buyer Parties and their financing sources of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC in connection with the Financing or that is of the type and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used in connection with the Financing; (x) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgetsMerger Sub, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of any financing the Financing proceeds of which are to be used to consummate, or otherwise to be consummated contemporaneous with or at or after the Closing in respect of the transactions contemplated by this Agreement, including without limitation, participation in meetings (including direct contact between the Company’s senior management and prospective lenders and investors), due diligence sessions, road shows and rating agency presentations; the preparation of confidential information memoranda, offering memoranda, private placement memoranda, registration statements, prospectuses and similar documents; assisting syndication efforts by utilizing the Company’s and its Affiliates’ existing banking and financial relationships; delivery of the Company’s unaudited consolidated financial statements for the three months ended March 31, 2004 and 2005 (which have been subject to a SAS 100 review by the Company’s independent auditors); participation in the preparation of pro forma financial information, projections, financial models and similar financial information; completion of any information used additional audit work necessary for the Company’s audited financial statements to comply with Regulation S-X promulgated under the Securities Act and applicable rules and regulations promulgated by the Securities and Exchange Commission and otherwise in customary form for an offering of securities registered on Form S-1 under the Securities Act; participation in the negotiation of any commitment letters, underwriting or placement agreements, indentures, supplemental indentures, loan agreements, escrow and security agreements, pledge and security documents, other definitive financing documents, or other requested certificates or documents, including a certificate of the chief financial officer of the Surviving Corporation and its Subsidiaries with respect to solvency matters; and delivery of comfort letters of accountants as may be reasonably requested by Merger Sub. The Company will use its commercially reasonable efforts to cause its independent auditors and former independent auditors to (i) cooperate in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), with any such financing; (ii) as a result of acts at the Target Properties of the Buyer Partiesdeliver customary comfort letters and bring-down comfort letters, any Financing Sources or their respective Affiliates or Representatives in each case, in accordance with SAS 72 and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10cooperate in due diligence and drafting sessions with arrangers, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or and/or placement agents in connection with the Financing, or any such financing. The Company will use its commercially reasonable efforts to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information assist Merger Sub in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings satisfying all of the Financing and (iii) conditions to the extent required financing contemplated by applicable securities laws or the Commitment Letters.
(b) The Company shall cooperate with any reasonable requests of Merger Sub related to the recording of the transaction contemplated hereby as otherwise is customary a recapitalization for financial reporting purposes, including, without limitation, to include appropriate disclosure with regard to such recording in private offerings of securities pursuant all mailings to Rule 144A/Regulation S under stockholders by the Securities Act, in any registration statements or prospectuses filed with Company describing the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference thereintransactions contemplated hereby.
Appears in 1 contract
Assistance with Financing. (a) 5.5.1 The Seller Parties acknowledge that the Buyer Parties intend agrees to pursue the Anticipated Financing and agree to provide such assistance (and use commercially reasonable efforts to cause the Group Companies to provide, upon the reasonable request of the Purchaser, and (in accordance with Clause 5.5.2) at the Purchaser’s sole cost and expense, all commercially reasonable cooperation in connection with the arrangement of the New Note Offering or any other financing contemplated in the Commitment Letter (collectively, the “Applicable Financing”) in connection with the transactions contemplated hereby, including:
(i) as promptly as reasonably practical furnishing the Purchaser, its financing sources and their respective Representatives to provide such assistance) with the Financing Required Information and such quarterly financial and other information regarding the Group as is may be reasonably requested by the Buyer Parties (provided, however, that such requested assistance does not unreasonably interfere Purchaser consistent with the ongoing operations Group’s past practice (including in connection with the Purchaser’s preparation of pro forma financial statements) and as may be reasonably necessary for the Debt Providers of the Seller Parties). Such assistance by Applicable Financing to receive comfort from the Seller Parties shall include the following to the extent reasonably requested by the Buyer Parties with respect to the Financing: auditors under (iiv) participation in and assistance with the Marketing Efforts related to the Financing; below;
(ii) assisting in preparation for, and senior management of the Group’s participation in, marketing efforts (including a reasonable number of meetings and calls), drafting sessions, rating agency presentations, road shows and accounting and other due diligence sessions (including using commercially reasonable efforts to cause the Group’s independent auditors to participate therein) and sessions with prospective lenders, investors and rating agencies and assisting the Purchaser in and assistance obtaining ratings as contemplated by the Applicable Financing;
(iii) assisting the Purchaser with the preparation of materials for rating agency presentations presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and meetings with rating agencies; (iii) delivery to similar documents for the Buyer Parties Applicable Financing which shall include an operating and their financing sources financial overview of the Financing Information, including: (v) the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required business conducted by the rules Group Companies for the last three (3) fiscal years and regulations of the SEC to be included or incorporated by reference in any registration statement under the Securities Act filed with the SEC most recent interim period;
(iv) providing customary representations in connection with the Financing or that is preparation of financial statements and other financial data of the type Group, requesting accountants’ consents in connection with the use of Group’s financial statements in offering documents and using commercially reasonable efforts to cause its independent auditors to issue customary “SAS 72” comfort letters (including circle-ups) to the Debt Providers and other financing sources providing the Applicable Financing in a form (including as to negative assurance) customarily included received by underwriters or incorporated by reference initial purchasers of debt securities in private placement memoranda pursuant to high yield Rule 144A/Regulation S offerings and participate in an accounting due diligence call prior to the launch of the Securities Act used New Note Offering, subject to their applicable professional standards and internal policies;
(v) assisting, and using commercially reasonable efforts to cause the Group’s independent auditors to assist, the Purchaser in connection with the Financing; preparation of pro forma financial information (xother than with respect to accounting comfort) information regarding the tenants in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely financial statements to the extent such data, information or items are in the Seller Parties’ necessary (or their controlling Affiliates’reasonably required by the Purchaser’s financing sources (including the Debt Providers)) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation be included in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the any Applicable Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; offering documents;
(vi) granting providing documentary due diligence materials as is customary in a private offer and sale of debt securities in the Buyer Parties U.S. and European high yield markets under the Financing Sources access exemptions provided by Rule 144A and Regulation S under the U.S. Securities Act of 1933;
(vii) complying with customary publicity guidelines with respect to the Target Properties (offering of any Applicable Financing, including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) refraining from public comment regarding any such offering without the prior written consent of the Seller Parties, which Purchaser except as may be granted required by applicable law;
(viii) providing the necessary ‘know your customer’ documents reasonably requested by the Purchaser and its financing sources to permit the relevant Group Companies to execute or withheld accede to any documents entered into in its sole discretionconnection with any Applicable Financing;
(ix) executing and delivering as of or following the Closing any pledge and security documents, none legal opinions, other definitive financing documents, or other certificates or documents as may be reasonably requested by the Purchaser and otherwise facilitating the pledging or releasing of collateral (including cooperation in connection with the pay-off of Indebtedness and the release of related liens and termination of security interests); and
(x) taking all corporate actions, subject to the occurrence of the Buyer PartiesClosing, reasonably requested by the Purchaser that are necessary or customary to permit the consummation of the Applicable Financing.
5.5.2 The Seller agrees to (i) provide the Debt Providers of the ABL Facility and their Representatives the Required Information, and (ii) use commercially reasonable efforts to cause the Group Companies to provide, upon the reasonable request of the Purchaser, and (in accordance with Clause 5.5.3) at the Purchaser’s sole cost and expense, the Financing Sources nor Debt Providers of the ABL Facility and their Representatives shall have access to the right books and records, officers and employees, and Properties of the Group Companies in order to take conduct reasonably necessary field examinations and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, collateral audits in connection with the ABL Facility provided, however, that (i) the Seller Parties shall not unreasonably withhold their consent Debt Providers to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing ABL Facility or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources their Representatives shall schedule and coordinate all inspections examinations and audits with the Seller Parties and shall give the Seller Parties at least two four (24) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties(ii) such examinations or audits shall be conducted during normal business hours, the Financing Sources (iii) not more than two (2) such examinations or their Representatives intend to conduct audits shall be conducted, and (Civ) the Seller Parties shall be entitled to have representatives Representatives present at all times during any such inspection; and examination or audit.
5.5.3 Notwithstanding the foregoing, nothing in this Agreement shall require any such cooperation to the extent that it would (viii) taking such actions as are reasonably requested by require any Group Company to enter into any financing, purchase or other agreement for the Buyer Parties Applicable Financing that would be effective prior to the Closing or the Financing Sources to facilitate the satisfaction on a timely basis (ii) result in any officer, director, manager or other Representative of all Bridge Financing Conditions that are in the control any Group Company or of any member of the Seller Parties. The Seller Parties will provide Seller’s Group incurring any personal liability with respect to any matters relating to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light Applicable Financing. No member of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates Seller’s Group shall be required to pay any fees or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation expenses in connection with the obligations of Applicable Financing and no Group Company shall be required to pay any such fees or expenses prior to the Closing, and the Group shall be reimbursed by the Purchaser for any Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costsRefinancing Fees. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and Purchaser shall indemnify and hold harmless the Seller Parties Company and its Affiliates and each member of the Seller’s Group and their respective Affiliates and Representatives from and against any and all damages, losses, costs Losses suffered or liabilities (including expenses and expenses incurred by them in connection with the defense of any Action) suffered or incurred by any of them Applicable Financing (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other including actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to in accordance with this Section 5.10Clause 5.5), except to the extent finally determined by a court of competent jurisdiction to have arisen that such Losses result from the fraud, gross negligence, willful misconduct Group having provided the Purchaser (or bad faith omitted to provide the Purchaser) with information that was intentionally materially incorrect or misleading (including as a result of any of the Seller Parties or any of their Affiliates or Representativesits omission).
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference therein.
Appears in 1 contract
Assistance with Financing. (a) The Prior to Closing, Seller Parties acknowledge that shall, and shall cause the Buyer Parties intend to pursue the Anticipated Financing Company and agree to provide such assistance (and to cause their respective Representatives to provide such assistance) with the Financing as is reasonably requested by the Buyer Parties (providedits Subsidiaries to, however, that such requested assistance does not unreasonably interfere with the ongoing operations of the Seller Parties). Such assistance by the Seller Parties shall include the following to the extent Purchaser may reasonably requested by request in connection with any third-party debt or equity financing Purchaser or Youbet may seek to obtain in order to fund the Buyer Parties with respect to the Financingtransactions contemplated hereby, use commercially reasonable efforts to: (i) participation cooperate in and assistance with the Marketing Efforts related to the Financing; preparation of any registration statement, prospectus, prospectus supplement, offering memorandum, bank book or similar document, (ii) participation in at Purchaser’s expense, make senior management of the Company and assistance with the preparation of rating agency its Subsidiaries reasonably available for customary “roadshow” presentations, lenders, meetings and presentations and meetings with to rating agencies; , (iii) delivery cooperate with prospective underwriters, lenders, placement agents, initial purchasers and their respective advisors in performing their due diligence, excluding, any environmental assessments, (iv) provide all financial statements and financial and other information (including footnote disclosures) in the Company’s possession that have been prepared prior to the Buyer Parties and their financing sources date hereof, including without limitation the financial statements of the Financing InformationCompany as of December 31, including: 2004 and the year then ended and as of September 30, 2005 and the nine-month period then ended, in each case audited by Cxxxx Cxxxxx and Company LLC, (v) use commercially reasonable efforts to cause the Company’s accountants to provide comfort letters to any underwriters or initial purchasers consistent with SAS 72 (as amended), including without limitation standard negative assurance on any interim period or pro forma financial statements contemplated by Section 5.11, (w) and consent to inclusion of such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference financial statements in any registration statement under the Securities Act filed with the SEC in connection with the Financing statement, prospectus, prospectus supplement, offering memorandum or that is of the type similar document, and form customarily included or incorporated by reference in private placement memoranda pursuant (vi) allow reasonable access to Rule 144A/Regulation S of the Securities Act its financial and accounting personnel and provide access to preliminary financial statements and other financial information to be used in connection with the Financing; (x) information regarding preparation of pro forma financial information. Purchaser may use the tenants Company’s name and logo in the Target Properties that is of the type and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Parties’ (or their controlling Affiliates’) possession or control (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv) using reasonable efforts to obtain customary accountants’ comfort letters and consents and participation in due diligence sessions conducted in connection with the provision of such comfort letters and consents; (v) at the reasonable request of the Buyer Parties and the Financing Sources, using reasonable best efforts to deliver any requests for, and to reasonably cooperate with the Buyer Parties in seeking to obtain, consents, landlord waivers and estoppels, or non-disturbance agreements to the applicable counterparties; (vi) granting the Buyer Parties and the Financing Sources access to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably necessary in connection with the Financing; provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) without the prior written consent of the Seller Parties, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions that are in the control of the Seller Parties. The Seller Parties will provide to the Buyer Parties and the Financing Sources such information within their (or their controlling Affiliates’) possession or control as may be reasonably necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10.
(b) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties or their Affiliates shall be required to pay or commit to pay any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation in connection with the obligations of the Seller Parties under Section 5.10(a) or otherwise in connection with the Financing, other than reasonable out-of-pocket costs. The Buyer Parties shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses incurred by any Seller Party or any of their respective Affiliates or Representatives for any action taken by any of them at the request of the Buyer Parties or the Financing Sources pursuant to Section 5.10(a), and shall indemnify and hold harmless the Seller Parties and their respective Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) suffered or incurred by any of them (i) in connection with the arrangement of the Financing and any information used in connection therewith (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to this Section 5.10, except to the extent finally determined by a court of competent jurisdiction to have arisen from the fraud, gross negligence, willful misconduct or bad faith of any of the Seller Parties or any of their Affiliates or Representatives.
(c) All non-public or other confidential information provided by the Seller Parties pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Financing, (ii) to rating agencies in connection with obtaining ratings of the Financing and (iii) to the extent required by applicable securities laws or as otherwise is customary in private offerings of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibitprospectus, report prospectus supplement, offering memorandum or disclosure statement filed with similar document related to the SEC and incorporated by reference thereinfinancing of the transactions contemplated hereby.
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Assistance with Financing. (a) The Seller Parties acknowledge that Company agrees to use commercially reasonable efforts to provide, and the Buyer Parties intend to pursue the Anticipated Financing and agree to provide such assistance (and Company shall use commercially reasonable efforts to cause its Subsidiaries (including, for the avoidance of doubt, XX Xxxxxx Enterprises, Inc.) and its and their respective Representatives to provide such assistance) provide, upon the reasonable request of Parent, and at Parent’s sole cost and expense, all commercially reasonable cooperation in connection with the Financing arrangement of the Debt Financing, as is applicable, in connection with the transactions contemplated hereby, including:
(i) as promptly as reasonably practical: (A) furnishing Parent, its financing sources and their respective Representatives with the Required Information and such financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent (including in connection with Parent’s preparation of pro forma financial statements); and (B) informing Parent if the Buyer Parties (providedCompany, however, that such requested assistance does not unreasonably interfere with Seller or any of their respective Affiliates has knowledge of any facts which could reasonably be expected to require the ongoing operations restatement of the Seller Parties). Such assistance by financial statements described in the Seller Parties shall include the following foregoing clause (A) for such financial statements to the extent reasonably requested by the Buyer Parties comply with respect to the Financing: (i) participation in and assistance with the Marketing Efforts related to the Financing; GAAP;
(ii) assisting in preparation for and participation in marketing efforts (including a reasonable number of meetings and assistance calls), drafting sessions, rating agency presentations, road shows and accounting and other due diligence sessions (including using commercially reasonable efforts to cause the Company’s and/or its Subsidiaries’, as applicable, independent auditors to participate therein and to otherwise cooperate with the reasonable requests of Parent) and sessions with prospective lenders, investors and ratings agencies and assisting Parent in obtaining ratings as contemplated by the Debt Financing;
(iii) assisting Parent and the Debt Providers with the preparation of materials for rating agency presentations presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and meetings similar documents for the Debt Financing, including the execution and delivery of customary representation letters in connection with rating agencies; (iii) delivery to the Buyer Parties bank information memoranda and their financing sources reviewing and commenting on Parent’s draft of the Financing Information, including: (v) a business description and “Management’s Discussion and Analysis” of the financial statements contemplated by Section 5.11, (w) such other financial, operating, property, tenant and lease data and information regarding the Seller Parties, the Target Properties or the Transactions required by the rules and regulations of the SEC to be included or incorporated by reference in any registration statement under offering documents relating to the Securities Act filed with the SEC Debt Financing;
(iv) providing appropriate representations in connection with the Financing or that is preparation of financial statements and other financial data of the type Company and form customarily included or incorporated by reference in private placement memoranda pursuant to Rule 144A/Regulation S of the Securities Act used its Subsidiaries, requesting accountants’ consents in connection with the Financing; (x) information regarding the tenants in the Target Properties that is use of the type Company’s and form customarily included in securitizations of mortgage loans which are secured by commercial properties, (y) any existing third-party reports regarding the Target Properties and (z) any rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commissions, insurance policies, existing surveys, existing zoning reports, leases, management agreements and licenses, but excluding operating and capital budgets, in each case under this clause (iii), solely to the extent such data, information or items are in the Seller Partiesits Subsidiaries’ (or their controlling Affiliatespreviously acquired entities’) possession or control financial statements in offering documents, prospectuses and other documents to be filed with the Securities and Exchange Commission (or to the extent the Seller Parties could obtain such data, information or items without unreasonable effort or expense); (iv“SEC”) and using commercially reasonable efforts to obtain customary accountants’ cause its independent auditors (and independent auditors of previously acquired entities, should such auditors have audited financial statements to be included in such offerings documents, prospectuses or other documents to be filed with the SEC) to issue comfort letters to the Debt Providers and consents other financing sources providing the Debt Financing in a form (including as to negative assurance and participation in due diligence sessions conducted change period) customarily received by underwriters or initial purchasers of debt securities, as the case may be;
(v) assisting, and using commercially reasonable efforts to cause its independent auditors to assist, Parent in connection with the provision preparation of such comfort letters pro forma financial information and consents; financial statements to the extent required by SEC rules and regulations or necessary (vor reasonably required by Parent’s financing sources (including the Debt Providers)) at to be included in any offering documents;
(vi) providing monthly financial reports consistent with the reasonable request Company’s and its Subsidiaries’ past practice;
(vii) executing and delivering as of the Buyer Parties Closing any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent (including customary evidence of insurance and a certificate of the chief financial officer of the Company or any of its Subsidiaries with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letter) and otherwise facilitating the pledging of collateral (including cooperation in connection with the pay-off of the Funded Indebtedness and the Financing Sources, using reasonable best release of related Liens and termination of security interests and cooperation in connection with Parent’s efforts to deliver any requests for, obtain environmental assessments and title insurance);
(viii) providing commercially reasonable assistance to reasonably cooperate with the Buyer Parties in seeking Parent to obtainobtain waivers, consents, landlord waivers estoppels and estoppelsapprovals from other parties to material leases, encumbrances and Contracts to which the Company or non-disturbance agreements any of its Subsidiaries is a party and, upon reasonable advance notice, to arrange discussions, during normal business hours and without undue interruption to the applicable counterparties; Company’s and its Subsidiaries’ businesses, among Parent, the Debt Providers and their respective Representatives with other parties to material leases, encumbrances and Contracts as of the Closing;
(viix) granting taking all commercially reasonable actions necessary to (A) permit Parent’s financing sources (including the Buyer Parties Debt Providers) to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the Financing Sources access purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations and (B) establish bank and other accounts and blocked account agreements and lock box arrangements to the Target Properties (including related documentation or other items in the Seller Parties’ possession or control) in order to conduct field examinations, collateral audits, asset appraisals, surveys, environmental site assessments and engineering/property condition reports and other inspections that are reasonably extent necessary in connection with the Debt Financing; provided;
(x) taking all corporate actions, however, that, notwithstanding anything subject to the contrary in this Agreement, (A) without the prior written consent occurrence of the Seller PartiesClosing, which may be granted or withheld in its sole discretion, none of the Buyer Parties, the Financing Sources nor their Representatives shall have the right to take and analyze any samples of any environmental media or any building material or to perform any invasive testing procedure on any Target Property, provided, the Seller Parties shall not unreasonably withhold their consent to the foregoing if, and only to the extent, (I) such sampling and/or invasive testing is recommended pursuant to a third-party environmental report and required by such Financing Source and (II) the Buyer Parties shall first have delivered to the Seller Parties a written request to conduct such testing or sampling, which request shall specify each Target Property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling, (B) the Buyer Parties and the Financing Sources shall schedule and coordinate all inspections with the Seller Parties and shall give the Seller Parties at least two (2) Business Days’ prior written notice thereof, setting forth the inspection that the Buyer Parties, the Financing Sources or their Representatives intend to conduct and (C) the Seller Parties shall be entitled to have representatives present at all times during any such inspection; and (vii) taking such actions as are reasonably requested by the Buyer Parties or the Financing Sources to facilitate the satisfaction on a timely basis of all Bridge Financing Conditions Parent that are in necessary or customary to permit the control consummation of the Seller Parties. The Seller Parties will provide Debt Financing, including any high yield financing, and to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries (not needed for other purposes), to be made available on the Closing Date to consummate the transactions contemplated by this Agreement; and
(xi) providing at least five (5) Business Days prior to the Buyer Parties Closing Date all documentation and other information about the Financing Sources such information within their (or their controlling Affiliates’) possession or control Company and its Subsidiaries as may be reasonably necessary so that is required by applicable “know your customer” and anti-money laundering rules and regulations including without limitation the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Seller Parties’ obligations under this Section 5.10, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller Parties’ Willful Breach of their obligations under this Section 5.10USA PATRIOT Act.
(b) Notwithstanding anything the foregoing, nothing in this Agreement shall require any such cooperation to the contrary extent that it would (i) require the Company or any of its Subsidiaries to enter into any financing, purchase or other agreement for the Debt Financing that would be effective prior to the Closing or (ii) result in this Agreementany officer, none director or manager or other Representative of the Seller Parties Company or their Affiliates any of its Subsidiaries incurring any personal liability with respect to any matters relating to the Debt Financing. Neither the Company nor any of its Subsidiaries shall be required to pay or commit to pay any cash commitment or other consideration, make any accommodation or commitment or incur any liability or other obligation fees in connection with the obligations of Debt Financing prior to the Seller Parties under Section 5.10(a) or otherwise in connection with Closing, and the Financing, other than reasonable out-of-pocket costs. The Buyer Parties Company and its Subsidiaries shall promptly, upon request be reimbursed by the Seller Parties, reimburse the Seller Parties Parent for all any reasonable and documented out-of-pocket costs and expenses incurred or otherwise payable by any Seller Party the Company or any of their respective Affiliates or Representatives for any action taken its Subsidiaries in connection with the cooperation contemplated by any of them at the request of the Buyer Parties or the Financing Sources pursuant to this Section 5.10(a), and 7.6. Parent shall indemnify and hold harmless the Seller Parties Company and their respective its Affiliates and Representatives from and against any and all damages, losses, costs or liabilities (including expenses and expenses in connection with the defense of any Action) Liabilities suffered or incurred by any of them (i) in connection with the arrangement of the Debt Financing and any information used in connection therewith or Alternate Debt Financing (other than historical information relating to the Seller Parties, their Affiliates or the Target Properties provided by the Seller Parties or their Representatives), (ii) as a result of acts at the Target Properties of the Buyer Parties, any Financing Sources or their respective Affiliates or Representatives and (iii) all other including actions taken by the Seller Parties or their Affiliates or Representatives at the request of the Buyer Parties pursuant to in accordance with this Section 5.107.6), except to the extent finally determined by a court that such Liabilities arise out of competent jurisdiction to have arisen or result from the fraud, gross negligence, any willful misconduct or bad faith of Seller, the Company, any of their respective Affiliates or any Representatives of any of the Seller Parties or any of their Affiliates or Representativesforegoing.
(c) All non-public or other confidential information The Company shall use commercially reasonable efforts to periodically update any Required Information provided by to Parent as may be necessary so that such Required Information (i) is Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Information” and (iii) would not, after giving effect to such update(s), result in the Marketing Period to cease to be deemed to have commenced. For the avoidance of doubt, Parent may, in order to most effectively access the financing markets, require the reasonable cooperation of the Company under this Section 7.6 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing; provided, that, for the avoidance of doubt, the Marketing Period shall not be applicable as to each attempt to access the markets.
(d) Seller Parties pursuant and the Company hereby consent to this Agreement shall be kept confidential the use of the Company’s and its Subsidiaries’ logos in accordance connection with the Confidentiality AgreementDebt Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Buyer Parties and their Representatives shall be permitted to disclose such information (i) to any Financing Sources Company or prospective Financing Sources, including any underwriters, initial purchasers or placement agents in connection with the Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with its Subsidiaries or the Financing, (ii) to rating agencies in connection with obtaining ratings reputation or goodwill of the Financing and (iii) to the extent required by applicable securities laws Company or as otherwise is customary in private offerings any of securities pursuant to Rule 144A/Regulation S under the Securities Act, in any registration statements or prospectuses filed with the SEC or in any private placement memoranda delivered to prospective investors in connection with the Financing, in each case, including any registration statement, exhibit, report or disclosure statement filed with the SEC and incorporated by reference thereinits Subsidiaries.
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