Buyer Financing. Seller acknowledges that Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries), including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Calumet Specialty Products Partners, L.P.), Asset Purchase Agreement (Murphy Oil Corp /De)
Buyer Financing. Seller acknowledges that Buyer may undertake an equity and/or debt financing (a) Subject to Section 1.7 hereto, Buyers shall use their reasonable best efforts to arrange and to consummate the Debt Financing as soon as reasonably practicable after the date of this Agreement on the terms described in the Debt Commitment Letter and Fee Letter, which shall include using their reasonable best efforts (i) to maintain in full force and effect the Debt Commitment Letter and Fee Letter in accordance with the terms and subject to the conditions thereof, (ii) to negotiate and execute all definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letter on the terms and conditions set forth in the Debt Commitment Letter and Fee Letter (the “FinancingFinancing Agreements”), (iii) to satisfy on a timely basis all conditions that are within its control to the proceeds Debt Commitment Letter, Fee Letter and the Financing Agreements that are applicable to the Buyers, (iv) to comply with its material obligations under the Debt Commitment Letter, the Fee Letter and any related documents, (v) to enforce their rights under the Debt Commitment Letter, Fee Letter and Financing Agreements; provided, that in no event shall Buyers be required to pursue or threaten any litigation against the Debt Financing Sources and (vi) to consummate the Debt Financing at the Closing if such Debt Financing is available in accordance with the terms of which may be used the Debt Commitment Letter and Fee Letter; provided, however, that if funds in the amounts and on the terms set forth in the Debt Commitment Letter and Fee Letter become unavailable to fund all or a the Buyers on the terms and conditions set forth therein, the Buyers shall use their reasonable best efforts to obtain as promptly as practicable, alternative debt financing on terms no less favorable in the aggregate (taking into account any “flex” provisions in the Fee Letter) to Buyer (the “Alternative Financing”) in an amount sufficient, when added to the portion of the Purchase PriceDebt Financing that is still available and funds to be supplied by the Buyers (or their Affiliates), to consummate the transactions contemplated under this Agreement and to pay any other amounts required to be paid by the Buyers and their Affiliates in connection with the consummation of the transactions contemplated under this Agreement, including all related fees and expenses to be paid by the Buyers and their Affiliates and to provide the Sellers with a copy of a new financing commitment that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”). Seller agrees If the Buyers proceed with Alternative Financing, they shall be subject to the same obligations as set forth in this Section 4.7(a) with respect to the Debt Financing and the representations and warranties of the Buyers set forth in Section 3.6 shall be true and correct in all material respects on and as of the date of the obtaining of the Alternative Financing with the same effect as though made on and as of such date. If applicable, except as otherwise expressly stated, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing,” any reference to “Debt Commitment Letter” or “Fee Letter” shall include the “Alternative Financing Commitment Letter,” and any fee letter in connection therewith, respectively, and any reference to “Financing Agreements” shall include any definitive agreements with respect to such Alternative Financing.
(b) Prior to the Closing, the Buyers shall notify the Sellers as promptly as reasonably practicable (and in any event within two Business Days) upon obtaining knowledge (i) of any breach by any party to the Debt Commitment Letter, the Fee Letter and/or the Financing Agreements, (ii) of any termination of the Debt Commitment Letter, Fee Letter and/or the Financing Agreements, (iii) of any material dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter that could reasonably be expected to materially impair, delay or prevent the transactions contemplated by this Agreement (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing and/or the Financing Agreements) and (iv) if at any time for any reason the Buyers believe in good faith that they will not be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter. As soon as reasonably practicable, the Buyers shall provide any information reasonably requested by the Sellers regarding the status of the Debt Financing relating to any circumstance referred to in clause (i), (ii), (iii) or (iv) of the immediately preceding sentence. The Buyers shall not permit any amendment, modification or supplement to be made to, or any waiver of, any provision or remedy under the Debt Commitment Letter, Fee Letter and/or the Financing Agreements, if applicable, that expands on the conditions precedent to the funding on the Closing Date as set forth in such agreements or that could otherwise reasonably be expected to materially impair, delay or prevent the transactions contemplated by this Agreement, in each case without the Sellers’ prior written consent (it being understood and agreed that, in any event, the Buyers may amend the Debt Commitment Letter, Fee Letter and/or the Financing Agreements to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement).
(c) Prior to the Closing, the Sellers and the Sellers’ Guarantors shall provide, and shall use its commercially their reasonable best efforts to cooperate cause their respective officers, employees, consultants, agents, advisors, affiliates and other representatives, including legal and accounting, to provide, such cooperation and assistance (including with Buyer’s efforts respect to secure timeliness) in connection with the arrangement of financings to be obtained by the Buyers in connection with the arrangement of the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business Sellers or Seller or its Subsidiariesthe Sellers’ Guarantors), including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of by the BusinessBuyers, including permitting Buyer’s lenders or their agents including, (i) providing to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller Buyers from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation time reasonably requested information (including reasonable attorneys’ financial and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (Aoperating data and other information) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including regarding the Purchased Assets, the Facilities Business and its industry that is reasonably available to the Sellers and Sellers’ Guarantors and using reasonable best efforts to assist with identification of any portion of such information that constitutes material non-public information and to supplement or update such information to the extent the Sellers or the Sellers’ Guarantors become aware of any new material information (whether positive or negative) related to the Purchased Assets or the Business that would cause the representation and warranty made by the Buyers in Section 3 of the Debt Commitment Letter to no longer be satisfied, (ii) participating in meetings, presentations, road shows, due diligence sessions with prospective lenders and sessions with rating agencies, (iii) assisting with the preparation of customary materials for rating agency presentations, offering documents, business projections and similar marketing documents required in connection with any such financings (including, as required by applicable stock exchange rules or securities laws), (iv) providing the Seller Required Information, (v) assisting with the preparation of any pledge and security documents and schedules, other definitive financing documents, or other certificates or documents as may be reasonably requested by the Buyers and otherwise facilitating the pledging of collateral (which pledge and security documents will not become effective until Closing), each as may be necessary or customary in connection with the Debt Financing, (vi) taking all reasonable actions necessary to, and permitting prospective financing sources to (including providing reasonable access to Buyers and prospective financing sources to all properties, books and records of the Business for such purposes and using reasonable best efforts to permit and/or facilitate environmental and other inspections), evaluate the Business and the Real Property. Notwithstanding anything Purchased Assets for the purposes of establishing collateral arrangements, including obtaining and providing appraisals and surveys, assisting with other collateral audits and due diligence examinations and, (vii) arranging for customary lien terminations and instruments of discharge to be delivered at Closing providing for the contrary hereindischarge and termination on the Closing Date of all Liens necessary to transfer the Purchased Assets free and clear of any Liens (other than Permitted Liens); provided, Buyer acknowledges and agrees that in each case in clauses (i) through (vii), that (A) nothing in this Section 4.7(c) shall require cooperation to the Closing is not conditioned upon consummating any Financing extent that it would reasonably be expected to conflict with or violate the Sellers’ or the receipt by Buyer of Sellers’ Guarantors’ organization documents or any funds necessary to pay the Purchase Price and law, (iiB) the failure Sellers’ and Sellers’ Guarantors’ board of Buyer to consummate any Financing directors and the directors, managers and general partners of the Sellers’ Subsidiaries shall not alter or modify Buyer’s obligations be required to consummate adopt resolutions approving the transactions contemplated hereby (including agreements, documents and instruments pursuant to which the Closing).Debt Financing is obtained,
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Easton-Bell Sports, Inc.)
Buyer Financing. Seller acknowledges that (a) The Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with arrange and obtain the Debt Financing on terms and conditions acceptable to the Buyer’s , including commercially reasonable efforts to secure (i) satisfy all conditions applicable to the Buyer obtaining the Debt Financing and (provided ii) enter into definitive agreements with respect to the Debt Financing; provided, however, that neither this Section 7.8 nor any other provision herein shall be construed to require the Buyer or any of its Affiliates to commence or prosecute any action, litigation, claim, arbitration or other proceeding, at law or in equity, against any other parties to the debt commitment letter in order to consummate the Debt Financing. The Buyer shall keep the Seller reasonably informed upon request of the Seller of material developments with respect to its efforts to arrange the Debt Financing.
(b) The Seller shall and shall cause its Affiliates and their respective representatives to, provide such requested cooperation does not unreasonably interfere (including with respect to timeliness) in connection with the ongoing operations arrangement of the Debt Financing as may be reasonably requested by the Buyer, including (i) providing to the Buyer from time to time information regarding the Business and its industry reasonably requested by the lenders providing the Debt Financing and assisting with identification of any portion of such information that constitutes material non-public information and using commercially reasonable efforts to update any such information to the extent contained in an offering document if the Seller or one of its Affiliates becomes aware of any new material information, (ii) ensuring that the sources for the Debt Financing benefit materially from the existing lending and investment banking relationships of the Business, including, without limitation, facilitating and promoting negotiations between the Buyer with the existing senior lenders to the Business, participating in meetings, presentations, road shows, due diligence sessions with prospective lenders and sessions with rating agencies, (iii) ensuring that there will not be any competing issues of debt securities or commercial bank or other credit facilities of the Business (other than the Debt Financing) being offered, placed or Seller arranged that would materially impair the offering or syndication of the Debt Financing, (iv) assisting with the preparation of materials for rating agency presentations, offering documents, business projections and similar marketing documents required in connection with the Debt Financing, (v) as promptly as practicable, furnishing the Buyer and its Subsidiaries)Debt Financing sources information reasonably requested by any of them, including (avi) permitting the prospective lenders to evaluate the Business’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and establishing bank and other accounts in connection with the foregoing, (vii) promptly providing quarterly and monthly financial statements (excluding footnotes) to the extent available and prepared by the Business in the ordinary course of business, (viii) using commercially reasonable efforts to deliver obtain (iA) an unaudited balance sheet for the Business as of June 30corporate, 2011 credit and the related statement of operations facility ratings from rating agencies, (B) consents and cash flow for the six months ended June 30waivers and legal opinions, 2011 and (iiC) other documentation and items contemplated by the statement Debt Financing documents or any definitive document relating to the Debt Financing as reasonably requested by the Buyer, (ix) assisting in satisfying the conditions precedent set forth in the Debt Financing documents or any definitive document relating to the financing (to the extent the satisfaction of operations such condition requires the cooperation of, and cash flow for is within the six months ended June 30, 2010 (collectivelycontrol of, the “Interim Financial Statements”Seller or one of its Affiliates), (bx) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with executing and delivering, as of the FinancingClosing Date, which comfort letters shall comply with the requirements of PCAOB AU Section 634 any pledge and cover such periods as are addressed security documents, other definitive financing documents, or other certificates or documents contemplated by the Business Financial Statements Debt Financing documents and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing hedging agreements as may be reasonably requested by the Buyer (including a certificate of the chief financial officer of the Seller with respect to financial matters for purposes of certifications with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral (including obtaining payoff letters, releases, terminations, waivers, consents, estoppels and approvals as may be required in connection with such parties’ due diligence investigation therewith) contemplated by the Debt Financing, and (xi) as of the BusinessClosing Date, including permitting Buyer’s lenders or their agents taking all corporate actions necessary to conduct an on-site evaluation authorize the consummation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08)Debt Financing. Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in In connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document offering materials related to the Financing or (C) be required to incur any other liability with respect syndication of the Debt Financing, the Seller hereby consents to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources maylogos, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities trademarks and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing)service marks.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Wausau Paper Corp.)
Buyer Financing. Seller acknowledges that Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries), including (a) using commercially Buyer shall, and shall use reasonable efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable best efforts to cause its independent auditors Subsidiaries to, use all reasonable best efforts to deliver customary “comfort letters” in connection with take, or cause to be taken, all actions, and to do, or cause to be done all things necessary to consummate the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed financings contemplated by the Business Financial Statements and Commitment Letters on conditions no less favorable to Buyer than the Interim Financial Statements and are required under Regulation S-X to be included in conditions described therein on a registration statement for a Financing registered with timely basis (taking into account the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days expected timing of the date of the latest audited or reviewed financial statements for the Business, and (cMarketing Period), if requested by Buyer, providing such information including using reasonable best efforts to (i) maintain in effect the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by BuyerCommitment Letters, (Bii) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability negotiate definitive agreements with respect to the Financing. Buyer shall indemnify financing contemplated by the Debt Commitment Letters on terms and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except conditions no less favorable to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to than the terms of and conditions set forth in the Confidentiality Agreement Debt Commitment Letters (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take taking into account the form and timing “market flex” provisions of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to SellerDebt Commitment Letters), (iii) Seller shall not satisfy (or obtain a waiver thereof) on a prompt and timely basis (taking into account the expected timing of the Marketing Period) all the conditions to the financing (and complying with all the obligations) (but excluding any condition where the failure to be obligated so satisfied is a direct result of a Seller’s failure to disclose furnish information as required under Section 6.13 or a Seller’s breach of any information if of its representations, warranties or other covenants under this Agreement) to the extent such disclosure would violate any agreement between Seller or its Subsidiaries conditions (and a third party, obligations) are in Buyer’s control and (iv) Buyer will not unreasonably interfere with upon satisfaction (or waiver) of such conditions, consummating the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to facilities under the Seller or its Subsidiaries or Commitment Letters no later than the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Closing.
(b) Buyer acknowledges and agrees that shall give Sellers prompt notice of (i) any material breach or default of the Closing is not conditioned upon consummating Commitment Letters or other Debt Document by any Financing or the receipt by party thereto of which Buyer of any funds necessary to pay the Purchase Price and becomes aware, (ii) if and when Buyer receives written notice from the failure of Buyer to consummate Financing Sources providing that the financing contemplated by any Financing shall Commitment Letter will not alter or modify Buyer’s obligations be available to consummate the transactions contemplated hereby on or prior to the Closing, (iii) the receipt of, together with copies of, any written notice or other written communication from any Financing Source with respect to any actual or potential breach, default, termination, rescission or withdrawal by any party to any Commitment Letter, (iv) if for any reason, any portion of the financing becomes unavailable in the amount contemplated by any Commitment Letter or the definitive agreements with respect thereto (such definitive agreements related to the debt financing or any Substitute Financing, collectively, with the Debt Commitment Letters, the “Debt Documents”) and such amount is reasonably necessary to fund the Required Amount and (v) upon request by Sellers, copies of, any Debt Documents or amendments, replacements or supplements to any Commitment Letter.
(c) Without limiting the obligation to provide such information as provided in the immediately preceding paragraph, as soon as reasonably practicable, but in any event within two Business (2) Days after the date Sellers delivers to Buyer a written request therefor, Buyer shall provide any information reasonably requested by Sellers relating to any circumstance referred to in clauses (i) through (v) of Section 6.12(b). Without limiting the foregoing, upon written request by Sellers, Buyer shall keep Sellers informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the financing.
(d) If funds in the amounts set forth in the Debt Commitment Letters, or any portion thereof, become unavailable (other than as a result of a breach by the Company of any representation, warranty or covenant contained in this Agreement that would cause the Debt Financing not to be available in accordance with the terms of the Debt Commitment Letters) to Buyer on the conditions set forth therein, Buyer shall promptly notify Sellers and shall use all reasonable best efforts to obtain substitute financing, including from alternative sources, in an amount sufficient, taking into account other available sources of cash, to fund the Required Amount (“Substitute Financing”); provided that notwithstanding anything to the contrary contained in this Section 6.12 or elsewhere in this Agreement, nothing contained in this Section 6.12 shall require, and in no event shall the “reasonable best efforts” of Buyer be deemed or construed to require, Buyer to (i) seek or obtain equity financing other than as contemplated by the Equity Commitment Letters, (ii) pay any fees in excess of those contemplated by any Debt Commitment Letters (including the “flex” terms) as Buyer expects on the date hereof or (iii) agree to any other terms (taken as a whole) less favorable to Buyer than such corresponding terms contained in or contemplated by the Debt Commitment Letters (in either case, whether to secure waiver of any conditions contained therein or otherwise), including any “flex” provision therein. To the extent Buyer obtains Substitute Financing, or amends, replaces, supplements, modifies or waives any of the Debt Commitment Letters pursuant to Section 6.12(e), references to the “Debt Letters” (and other like terms in this Agreement) shall be deemed to refer to such Substitute Financing, or the Debt Commitment Letters and Debt Financing contemplated thereby as so amended, replaced, supplemented, modified or waived.
(e) Buyer shall (i) comply in all material respects with its obligations under each Commitment Letter and each definitive agreement with respect thereto or any Substitute Financing, including the Debt Documents, (ii) use reasonable best efforts to enforce in all material respects their rights under each Debt Document and (iii) not permit, without the prior written consent of Sellers, any material amendment or modification (including the exercise of any right to reduce or terminate commitments) to be made to, or any material waiver of any provision or remedy under, any Commitment Letter, Debt Document or the fee letter referred to in the Debt Commitment Letters to the extent any such amendment, modification or waiver (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the financing under any Commitment Letter or Debt Document (including by changing the amount of fees to be paid or original issue discount thereof, other than pursuant to the exercise of “market flex”, such that the Required Amount would not be available to Buyer on the Closing (taking into account other available sources of cash), or (y) impose any new or additional conditions, or otherwise amend, modify or expand any condition, to the receipt of any portion of the financing in a manner that would reasonably be expected to (I) delay or prevent the Closing Date, (II) make the funding of any portion of the financing (or satisfaction of any condition to obtaining any material portion of the financing) less likely to occur or (III) adversely impact the ability of Buyer to enforce its rights against any other party to any Commitment Letter or Debt Document, the ability of Buyer to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby.
(f) Buyer acknowledges and agrees that obtaining the financing, or any Substitute Financing, is not a condition to Closing).
Appears in 1 contract
Buyer Financing. Seller acknowledges that (a) Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure arrange the Financing (provided that such requested cooperation does not unreasonably interfere with as promptly as practicable, on substantially the ongoing operations of terms and conditions described in the Business or Seller or its Subsidiaries)Financing Commitments, including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for negotiate and finalize definitive agreements with respect to the Business as of June 30Financing substantially on the terms and conditions contained in the Financing Commitments, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) satisfy on a timely basis all conditions applicable to Buyer in such definitive agreements that are within the statement control of operations Buyer (or any Affiliate of Buyer) and cash flow for (iii) comply with its obligations under the six months ended June 30Financing Commitments. In the event any portion of the Financing becomes unavailable from any of the counterparties to the Financing Commitments on substantially the terms and conditions contemplated in the Financing Commitments, 2010 and such portion is reasonably required to consummate the transactions contemplated by this Agreement, Buyer shall promptly notify Newpark and shall use its commercially reasonable efforts to arrange and obtain alternative financing from alternative sources on terms substantially similar to those contained in the Financing Commitments that will still enable Buyer to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event, but no later than the Termination Date. Buyer shall deliver to Newpark true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Buyer with any portion of the Financing. Buyer shall promptly provide Newpark with true, complete and correct copies of any amendment, replacement, supplement or other modification or waiver of the Financing Commitments or any definitive agreement relating to the Financing and shall keep Newpark reasonably apprised of material developments relating to the Financing. Without limiting the generality of the foregoing, Buyer shall give Newpark prompt notice (collectivelyx) of any material breach or default under any Financing Commitment or any definitive agreement related to the Financing by any party thereto of which Buyer becomes aware and (y) of the receipt of any written notice or other written communication, in each case from any Financing source with respect to any actual or potential breach, default, termination or repudiation of any provisions of any Financing Commitment or any definitive agreement related to the “Interim Financial Statements”), Financing by any party thereto.
(b) From and after the date hereof until the earlier of the termination of this Agreement or the Closing Date, the Newpark Entities shall, and shall cause the Transferred Entities and their representatives to, provide such cooperation as may be reasonably requested by Buyer to assist Buyer and its Affiliates and representatives in connection with the arrangement of the Financing, including (i) providing to Buyer from time to time information regarding the Transferred Entities and their industry reasonably requested by the Lender and assisting with the identification of any portion of such information that constitutes material non-public information and, upon the reasonable request of Buyer, using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” update any such information, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, business projections and similar marketing documents required in connection with the Financing, which comfort letters shall comply (iii) as promptly as practicable, furnishing Buyer and its Financing sources information reasonably requested by any of them, (iv) permitting the Lender to evaluate the Transferred Entities’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and establishing bank and other accounts in connection with the requirements foregoing, and (v) as of PCAOB AU the Closing Date, taking all corporate actions reasonable necessary to authorize the consummation of the Financing; provided that, notwithstanding anything to the contrary contained in this Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included 5.15(b), nothing in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for this Section 5.15(b) shall require any subsequent partial period for which the applicable financial information for the Business is available cooperation to the extent such partial period is within 135 days that it would (A) require any Newpark Entity or any Transferred Entity, as applicable, to waive or amend any terms of the date of the latest audited this Agreement, agree to pay any commitment, financing or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information other fees or reimburse any expenses with respect to the underwriters, initial purchasers, lenders Financing or other financing parties in (B) require any such proposed Transferred Entity to take any action with respect to the Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is not contingent upon the subject of Section 2.08Closing (including the entry into any agreement). Buyer shall promptlyshall, upon request by Seller from time to timeNewpark, promptly reimburse Seller Newpark for the reasonable, all reasonable and documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation and expenses (including reasonable attorneys’ and accountants’ documented attorney’s fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor ) incurred by any of its Subsidiaries shall (A) be required to incur any cost Newpark Entity or expense Transferred Entity in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed cooperation contemplated by Buyer, clause (Bii) have any liability or any obligation under any agreement or document related to the Financing or (Cof this Section 5.15(b) be required to incur any other liability with respect to the Financing. Buyer and shall indemnify and hold harmless Seller each Newpark Entity, each Transferred Entity and its Subsidiaries, and its and each of their respective officers, directors, officers, employees, agents, Affiliates and representatives and advisors from and against any and all Damages suffered or incurred by any of them of any type in connection with the arrangement or consummation of the Financing and except with respect to any information utilized in connection therewith, except to the extent that such Damages result resulting from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third indemnified party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing).
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Newpark Resources Inc)
Buyer Financing. Seller acknowledges that Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries), including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and The Buyer shall use its reasonable best efforts to respond to such comments in a manner reasonably satisfactory to Seller)take, (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate, and obtain the proceeds of, the Financing on the terms and conditions described in the Financing Commitment Letters. The Buyer shall not permit any sampling amendment, replacement, supplement or other invasive investigation modification to be made to, or any waiver of any provision or remedy under, the air, soil, soil gas, surface water, groundwater, building materials Financing Commitment Letters or other environmental media at any property definitive agreements related to the Financing Commitment Letters without the prior written consent of the Seller if such amendment, modification or its Subsidiaries waiver (A) would reasonably be expected to impede, prevent or materially delay the Business, including consummation of the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt transactions contemplated by Buyer of any funds necessary to pay the Purchase Price and this Agreement, (iiB) materially adversely impacts (1) the failure ability of the Buyer to consummate any enforce its rights against the other parties to the Financing shall not alter Commitment Letters or modify Buyer’s obligations the definitive agreements with respect thereto or (2) the ability of the Buyer to consummate the transactions contemplated hereby (including C) adversely amend or expand upon the Closingconditions precedent to the Financing or (D) reduces the aggregate amount of the Debt Financing and the financing under the Equity Agreements. Notwithstanding the foregoing, the Buyer may amend the Financing Commitment Letters to add lenders or investors, as applicable, or similar entities that have not executed the Financing Commitment Letters as of the date of this Agreement so long as any such addition would not reasonably be expected to prevent, materially hinder or materially delay the consummation of the Financing or the transactions contemplated by this Agreement. Upon any such amendment, replacement supplement or modification of any of the Financing Commitment Letters in accordance with this Section 4.4(a)., the term “Financing Commitment Letters” shall mean the Financing Commitment Letters as so amended, replaced, supplemented or modified in accordance with this Section 4.4(a) and, in the event that Buyer obtains Alternative Financing in accordance with this Section 4.4(a), the term “Financing Commitment Letters” shall mean the commitment letter or letters (as amended, replaced, supplemented or modified in accordance with this Section 4.4(a))
Appears in 1 contract
Samples: Stock Purchase Agreement (Atlantic Blue Group, Inc.)
Buyer Financing. Seller acknowledges that Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable best efforts to cooperate with Buyer’s efforts take, or cause to secure be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing (provided that such requested cooperation does not unreasonably interfere with on the ongoing operations of terms and conditions described in the Business or Seller or its Subsidiaries)Commitment Letter, including using reasonable best efforts to, as promptly as possible, (a) using commercially reasonable efforts satisfy, or cause to deliver (i) an unaudited balance sheet for be satisfied, on a timely basis all conditions applicable to Buyer under the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”)Commitment Letter, (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection negotiate and enter into definitive agreements with respect thereto on the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 terms and cover such periods as are addressed conditions contemplated by the Business Financial Statements and the Interim Financial Statements and Commitment Letter or on other terms that are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available acceptable to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, Debt Financing Source and (c), if requested by Buyer, providing such information to ) upon the underwriters, initial purchasers, lenders satisfaction or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation waiver of the Businessconditions set forth in the Commitment Letter, including permitting Buyer’s lenders consummate the Debt Financing at or their agents prior to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08)Closing. Buyer shall promptlygive Seller prompt written notice (i) of any breach or default by any party to the Commitment Letter or other Debt Document of which Buyer becomes aware, upon request (ii) if and when Buyer becomes aware that any portion of the Debt Financing contemplated by Seller from time to time, reimburse Seller the Commitment Letter may not be available for the reasonableFinancing Purposes, documented out-of-pocket costs incurred (iii) of the receipt of any written communication regarding an actual or potential breach or default by Seller any party to the Commitment Letter or other Debt Documents, (iv) of any material dispute or disagreement between or among any parties to the Commitment Letter or other Debt Documents and (v) of its Subsidiaries any expiration or termination of the Commitment Letter or other Debt Document. If any portion of the Debt Financing becomes, or would reasonably be expected to become, unavailable on the terms and conditions contemplated in connection with the Commitment Letter, Buyer shall use reasonable best efforts to arrange to obtain alternative debt financing, including from alternative sources, in an amount sufficient to consummate the transactions contemplated by this Agreement and the Transaction Documents and to satisfy the other Financing Purposes (“Alternative Financing”) as promptly as practicable following the occurrence of such cooperation (including reasonable attorneys’ event and accountants’ fees). Notwithstanding anything in the provisions of this Section 7.11 6.19 shall be applicable to the contraryAlternative Financing, neither Seller nor any and, for the purposes of its Subsidiaries Section 5.05, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Buyer shall (A) be required to incur any cost or expense comply in connection all material respects with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by BuyerCommitment Letter and each definitive agreement with respect thereto (collectively, with the Commitment Letter, the “Debt Documents”), and (B) have not permit, without the prior written consent of Seller, any liability material amendment or modification to be made to, or any obligation termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, any Debt Document or the fee letter referred to in the Commitment Letter that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (1) reduce the aggregate amount of the Debt Financing under any agreement Debt Document (including by changing the amount of fees to be paid or document related original issue discount thereof) below the amount necessary to consummate the transactions contemplated by this Agreement and the Transaction Documents and to satisfy the other Financing Purposes, or (2) impose any new or additional material condition, or otherwise amend, modify or expand any condition in any material respect, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (x) delay or prevent the Closing, (y) make the funding of any portion of the Debt Financing (or satisfaction of any condition to obtaining any portion of the Debt Financing) materially less likely to occur or (Cz) be required adversely impact the ability of Buyer to incur consummate the transactions contemplated by this Agreement or any other liability with respect to Transaction Document or the Financinglikelihood of the consummation of the transactions contemplated by this Agreement and the Transaction Documents. Until the Closing, Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary current basis as to such form and timing) to comment on those portions in reasonable detail of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use status of its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller)consummate the Debt Financing. Notwithstanding the foregoing, (iii) Seller compliance by Buyer with this Section 6.19 shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) relieve Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations obligation to consummate the transactions contemplated hereby (including by this Agreement and the Closing)Transaction Documents, whether or not the Debt Financing is available.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Southern Power Co)
Buyer Financing. Seller acknowledges (a) Buyer shall, and shall cause its Affiliates to, use reasonable best efforts to (A) obtain the proceeds of the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters and (B) close the NER Financing on the terms and conditions set forth in the NER Commitment Letter. Without limiting the foregoing, Buyer shall, and shall cause its Affiliates to, use reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and the NER Commitment Letter in accordance with their terms, (ii) satisfy as promptly as practicable (or obtain the waiver of) all conditions applicable to obtaining the Debt Financing and NER Financing that are within the control of Buyer or any of its Affiliates on terms set forth in the applicable Commitment Letters or in any definitive documents with respect to such Financing, (iii) enter into, as promptly as practicable after the date hereof, definitive documents with respect to the Debt Financing on terms and conditions set forth in the Debt Commitment Letters and (iv) use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing at or prior to the Closing and close the NER Financing immediately after the Closing (including by commencing Actions against the Financing Sources to enforce the terms of the applicable Commitment Letters or any definitive documents relating to such Financing). Buyer shall, and shall cause its Affiliates to, comply with all of their obligations under the Commitment Letters and any definitive documents relating to the Financing.
(b) Buyer shall not, without the prior written consent of Seller, permit any amendment or modification to be made to the Debt Commitment Letter or any definitive document relating to the Debt Financing that would (A) reduce the aggregate amount of the Debt Financing (without a corresponding increase in another portion of the Financing effected in compliance with this Section 5.23), including by changing the amount of fees to be paid or original issue discount of the Debt Financing), (B) impose new or additional conditions, or otherwise amend, modify or expand the conditions, to the drawdown of the Debt Financing in a manner that, in the reasonable expectation of Buyer, would delay or prevent the Closing or make the drawdown of the Debt Financing (or the satisfaction of the conditions to such drawdown) less likely to occur; provided, however, that Buyer may undertake an equity and/or debt financing replace, amend or modify the Debt Commitment Letter to add or replace Financing Sources, lead arrangers, syndication agents, bookrunners or similar entities.
(c) Buyer shall not, without the “prior written consent of Seller, permit any amendment or modification to be made to the NER Commitment Letter that would (A) change the aggregate amount of the NER Financing”), including by changing the amount of fees to be paid, (B) impose new or additional conditions, or otherwise amend, modify or expand the conditions, to the closing of the NER Financing in a manner that would reasonably be expected to delay or prevent the Closing; provided, that Buyer may replace, amend or modify the NER Commitment Letter to add or replace Financing Sources.
(d) Buyer shall not, without the prior written consent of Seller, permit any amendment or modification to be made to the Equity Commitment Letter, and shall cause its Affiliates to use reasonable best efforts to obtain the proceeds of the Equity Financing on the terms and conditions set forth in the Equity Commitment Letter.
(e) Buyer shall not release or consent to the termination of the obligations of any Financing Source under any Commitment Letter or any definitive document with respect to the Financing without Seller’s prior written consent, provided for the avoidance of doubt that no such consent is required in connection with any release or termination in connection with the replacement of one or more Financing Sources as permitted under this Section 5.23.
(f) Buyer shall give Seller reasonably prompt notice of (I) any termination of the Commitment Letters or material breach by any party thereto of which may Buyer becomes aware, (II) the receipt of any written notice or other written communication from any Financing Source regarding any actual or alleged breach, default, termination or repudiation of any Commitment Letter or any definitive document with respect to the Financing by any party thereto and (III) any reason Buyer believes in good faith that it will not be used able to fund obtain all or a any portion of the Purchase PriceFinancing on the terms, in the manner or from the sources contemplated by the Commitment Letters or the definitive documents relating thereto. Buyer shall provide any information reasonably requested by Seller agrees relating to any of the circumstances described in the foregoing sentence as soon as reasonably practicable, but in any event within three Business Days, after the date that it Seller delivers to Buyer a written request for such information. Buyer shall use consult with and keep Seller reasonably informed upon request of the status of its commercially reasonable efforts to cooperate with Buyer’s efforts to secure arrange for and consummate the Financing (provided Financing, and shall promptly provide Seller true, correct and complete copies of any definitive documents that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries), including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” are executed in connection with the Financing. If any portion of the Debt Financing or NER Financing becomes unavailable on the terms and conditions set forth in the applicable Commitment Letters, which comfort letters Buyer shall comply with the requirements (1) promptly notify Seller of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements unavailability and the Interim Financial Statements reasons therefor and are (2) use its reasonable best efforts, as promptly as practicable following the occurrence of such event, to arrange for and obtain, and negotiate and enter into definitive documents with respect to, alternative financing from alternative sources (“Alternative Financing”) in an amount sufficient to permit the Buyer Parties to consummate the transactions contemplated by this Agreement and the other Transaction Agreements and pay all related costs and expenses required under Regulation S-X to be included paid by them in connection therewith; provided that (i) in no event may any Alternative Financing involve a registration statement for a Financing public offering that is registered with with, or require any filings with, the Securities and Exchange Commission, together with negative assurance for Commission or under the securities laws of any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, jurisdiction and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties ii) in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory no event shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur enter into any cost or expense Alternative Financing on terms that, taken in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyeraggregate, (B) have any liability or any obligation under any agreement or document related are materially less favorable to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to it than the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Equity Financing, and Buyer will keep Seller reasonably informed on a contemporary basis Debt Financing or the NER Financing, as to such form and timingthe case may be.
(g) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, doubt and notwithstanding anything in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related this Agreement to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary hereincontrary, Buyer acknowledges and agrees that (i) obtaining neither the Debt Financing nor the Equity Financing is a condition to the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations reaffirms its obligation to consummate the transactions contemplated hereby by this Agreement irrespective and independently of the availability of the Debt Financing and the Equity Financing, subject only to the fulfillment of the conditions set forth in Sections 6.1 and 6.2 (including the Closing)or waiver thereof as provided in Sections 6.1 and 6.
Appears in 1 contract
Buyer Financing. Seller acknowledges that (a) Buyer may undertake an equity and/or debt financing (shall have executed the “Financing”)Senior Debt Letter no later than April 20, 2006, which letter, if from a substitute lender, shall be reasonably satisfactory to the proceeds of which may be used to fund all or a portion of the Purchase PriceCompany. Seller agrees that it shall Buyer will use its commercially reasonable best efforts to cooperate with Buyer’s efforts obtain the Senior Debt Financing under the Senior Debt Letter, or, in the event it is unavailable, substitute debt financing; provided, however, that notwithstanding any other provision of this Agreement to secure the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries)contrary, including (a) using commercially reasonable efforts Buyer shall in no event be obligated to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and waive any condition to its obligation to close hereunder; (ii) provide any consent to any changes to the statement Senior Debt Financing set forth in the Senior Debt Letter; (iii) accept any substitute financing on terms (taken in the aggregate) less favorable to Buyer than the Senior Debt Financing would have been (assuming the application of operations and cash flow for this Section 5.15(a)); or (iv) close under the six months ended June 30Senior Debt Financing set forth in the Senior Debt Letter, 2010 if, at any time after the date hereof (collectivelyA) there is in effect any moratorium on commercial banking activities by the United States or the State of New York, or (B) there has been the “Interim Financial Statements”commencement (or material escalation) of war or armed hostilities (including acts of terrorism), either within or outside the United States, or a declaration of a national emergency by the United States that has caused, a material disruption of commercial credit or debt capital market conditions or market conditions for leveraged loans or high yield debt securities. In the event any substitute financing is accepted by Buyer, it shall be accepted with full applicability of this Section 5.15(a) to the provisions of any new debt commitment letter.
(b) using commercially The Company agrees to provide, and shall cause the Subsidiaries and its and their Representatives to provide on a timely basis, all reasonable efforts to cause its independent auditors to deliver customary “comfort letters” cooperation in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days arrangement of the date of the latest audited or reviewed financial statements for the Business, and (c), if Financing as may be requested by Buyer, providing such including (i) participation in meetings and due diligence sessions, (ii) furnishing Buyer and its financing sources with financial and other pertinent information to regarding the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing Company as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (Biii) have assisting Buyer and its financing sources in the preparation of any liability materials reasonably required by the financing sources for marketing or internal approval purposes and (iv) providing and executing documents as may be reasonably requested by Buyer, including a certificate of the chief financial officer of the Company or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability Subsidiary with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiariessolvency matters, and its and their respective directorscomfort letters of accountants, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any consents of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any accountants for use of their respective representatives reports in any materials relating to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, legal opinions, surveys and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing)title insurance.
Appears in 1 contract
Buyer Financing. Seller acknowledges that Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries), including (a) using commercially Upon the entry into a Debt Financing Commitment, Buyer shall, and shall cause each of its Designated Affiliates to, use their respective reasonable best efforts to deliver (i) an unaudited balance sheet for the Business as of June 30take, 2011 or cause to be taken, all actions, and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially use their reasonable best efforts to do, or cause its independent auditors to deliver customary “comfort letters” be done, all things necessary, proper or advisable to arrange, obtain and consummate the debt financing contemplated by the Debt Financing Commitment that is being obtained by Buyer in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements Acquisition and the Interim Financial Statements and are required under Regulation S-X to be included in other transactions contemplated thereby (the “Debt Financing”) on a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and timely basis (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties but in any such proposed event no later than the Closing Date) on the terms and conditions described in the Debt Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the BusinessCommitments, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and using their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except reasonable best efforts to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of comply with their respective representatives to Buyer obligations under the Debt Financing Commitments, (ii) maintain in effect (and not cause, suffer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to allow the terms of amendment of) the Confidentiality Agreement applicable Debt Financing Commitments (except to the extent required Alternative Financing is obtained in an amount sufficient to be disclosed under applicable securities laws in connection with an offering of securities consummate the transactions contemplated by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect this Agreement on the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to SellerClosing Date), (iii) Seller shall not be obligated negotiate, enter into, execute and deliver to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and the applicable Debt Financing Sources the Debt Financing Documents on a third partytimely basis, (iv) Buyer will not unreasonably interfere with the operation satisfy (and cause each Designated Affiliate to satisfy) or obtain a waiver of Seller (or its Subsidiaries’ business in connection herewith. For the avoidance of doubtcause each Designated Affiliate to obtain a waiver of), in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct each case on or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related prior to the Seller Closing Date, all conditions applicable to Buyer contained in the Debt Financing Commitments (or its Subsidiaries or the Businessany Debt Financing Documents), including the Purchased Assetspayment of any commitment, engagement or placement fees required as a condition to the Facilities Debt Financing, (v) upon satisfaction of such conditions and the Real Property. Notwithstanding anything conditions set forth in Section 4.1 and Section 4.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the contrary hereinsatisfaction or waiver of such conditions), enforce all of their respective rights under the Debt Financing Commitments (and all Debt Financing Documents) and consummate the Debt Financing at or prior to the Closing Date, but in no event later than the End Date (it being understood that it is not a condition to Closing and/or any of Buyer’s obligations under this Agreement for Buyer to obtain the Debt Financing) and (vi) comply with their respective covenants or other obligations pursuant to the Debt Financing Commitments and the Debt Financing Documents to be complied with on or prior to the Closing Date. Upon written request by Seller, Buyer acknowledges and agrees that shall let Seller know of the status of its efforts to arrange the Debt Financing in reasonable detail (including providing Seller with copies of all requested Debt Financing Documents). Prior to the Closing Date, Buyer shall give Seller written notice not more than two (2) Business Days (i) following discovery by Buyer or any Designated Affiliate (or knowledge of) of (x) any breach, default (or any event of circumstance that, with notice or lapse of time or both, could reasonably be expected to give rise to any breach or default) of, cancellation or termination of, or repudiation by any party thereto of, any of the Closing is not conditioned upon consummating any Debt Financing Commitments or Debt Financing Documents or (y) the receipt by Buyer of any funds necessary written notice or communication from any Qualified Financial Institutions with respect to pay the Purchase Price and any actual or threatened breach, default, cancellation, termination or repudiation by any Debt Financing Source of any Debt Financing Commitment or Debt Financing Document or (ii) if for any reason Buyer at any time believes that it will not be able to obtain all or any portion of the failure Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitments or any Debt Financing Document.
(b) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions of the Debt Financing Commitments, Buyer shall (i) deliver to consummate Seller notice of such event (the “Debt Financing Unavailability Notice”), which Debt Financing Unavailability Notice shall set forth in reasonable detail the reasons giving rise to such event, as promptly as practicable following the occurrence of such event, change, effect, development, occurrence or circumstance, (ii) use its reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, change, effect, development, occurrence or circumstance (and in any event prior to the End Date), the Debt Financing shall not alter or modify Buyer’s obligations such portion of the Debt Financing from alternative sources, which may include one or more of a senior secured debt financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, in an amount sufficient, when added to consummate any portion of the Debt Financing that is and will be available, to pay in cash all amounts required to be paid by Buyer in connection with the transactions contemplated hereby by this Agreement (including “Alternative Financing”). In such event, the Closing)term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Financing and (iii) use its reasonable best efforts to obtain a new financing commitment letter (together with its related term sheets, the “Alternative Debt Financing Commitments”) and a new definitive agreement with respect thereto that provides for financing (A) on terms not less favorable, in the aggregate, to Buyer than the applicable Debt Financing Commitments as of the date of this Agreement, (B) containing conditions to draw, and other terms that would reasonably be expected to affect the availability thereof, that (1) are not more onerous than those conditions and terms contained in the applicable Debt Financing Commitments as of the date of this Agreement and (2) would not reasonably be expected to delay the Closing and (C) in an amount that is sufficient, when added to any portion of the Debt Financing that is and will be available, to pay in cash all amounts required to be paid by Buyer in connection with the transactions contemplated by this Agreement. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Financing, and the term “Debt Financing Commitments” as used in this Agreement shall be deemed to include any Alternative Debt Financing Commitments.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Huntsman International LLC)
Buyer Financing. Seller acknowledges that The Buyer may undertake an equity and/or has delivered to ARC true and complete copies of (a) executed commitment letters (the “Debt Financing Commitments”), pursuant to which the lender party thereto has agreed, subject to the terms and conditions set forth therein, to provide the debt financing contemplated thereby (the “Debt Financing”) and (b) executed equity commitment letters (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), including an Equity Financing Commitment with a party not affiliated with the Farallon Guarantor (the “Third Party Equity Commitment”), in each case pursuant to which each committing party has agreed, subject to the terms and conditions set forth therein, to provide the equity financing contemplated thereby (the “Equity Financing” and, together with the Debt Financing, the “Financing”). The Financing Commitments have not been amended or modified prior to the date hereof, and the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure commitments contained in the Financing (provided that such requested cooperation does Commitments have not unreasonably interfere with the ongoing operations of the Business been withdrawn or Seller or its Subsidiaries), including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for the Business rescinded in any respect as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date hereof. As of the latest audited or reviewed financial statements for date hereof, the BusinessFinancing Commitments are in full force and effect. As of the date hereof, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders there are no conditions precedent or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document contingencies related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out funding of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing full amount of the Financing, other than as set forth in or contemplated by the Financing Commitments. Subject to the terms and conditions set forth in the Financing Commitments, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitment, together with the Buyer’s cash and cash equivalents on hand at the time of the Closing, will be sufficient for the Buyer will keep Seller reasonably informed on a contemporary basis to pay the Final Purchase Price and to pay all related fees and expenses payable by the Buyer. The Buyer has no reason as of the date hereof to such form and timing) to comment on those portions believe that any of any prospectus or confidential information memorandum related the conditions to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use contemplated by the Financing Commitments within its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall control will not be obligated to disclose any information if such disclosure would violate any agreement between Seller satisfied or its Subsidiaries and a third party, (iv) Buyer has no expectation as of the date hereof that the Financing will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related made available to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) on the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing)Date.
Appears in 1 contract
Samples: Transaction Agreement (Affordable Residential Communities Inc)
Buyer Financing. Seller acknowledges that (a) Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable best efforts to cooperate with Buyer’s efforts take, or cause to secure be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange and consummate the Financing on the terms and conditions described in or contemplated by the Financing Commitments (provided that such requested cooperation does not unreasonably interfere including complying with the ongoing operations of the Business or Seller or its Subsidiariesany request exercising so-called “flex” provisions contained therein), including (a) using commercially reasonable best efforts to deliver (i) an unaudited balance sheet maintain in effect the Financing Commitments (as such terms and conditions may be modified or adjusted in accordance with the terms thereof and within the limits of the “flex” provisions therein) until the Closing; provided, however, that for the Business avoidance of doubt and notwithstanding the foregoing, (A) Buyer may amend, replace, supplement or modify the Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Financing Commitments as of June 30the date hereof, 2011 and (B) Buyer may amend, supplement or modify the related statement Debt Financing Commitments in accordance with the “flex” provisions contained therein or amend, replace, supplement, modify or waive any provision under the Debt Financing Commitment or the definitive agreements relating to the Debt Financing if such amendment, replacement, supplement, modification or waiver does not (x) decrease the aggregate amount of operations the Debt Financing to an amount that would be less than an amount that would be required to consummate the purchase of the Shares on the Closing Date and cash flow make the other payments required to be made by Buyer or any of its Affiliates hereunder on the Closing Date, in each case, that is not otherwise compensated for by an increase in the six months ended June 30Equity Financing, 2011 (y) impose new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing in a manner that would (I) reasonably be expected to prevent or materially delay the Closing, (II) make the timely funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (III) materially and adversely impact the ability of Buyer to enforce its rights against the other parties to the Debt Financing Commitments or the ability of Buyer, the Company or Seller to enforce its rights against the Buyer Guarantor under the Equity Financing Commitment, (ii) satisfy (or obtain waivers to) on a timely basis all conditions to funding in the statement of operations Debt Financing Commitments and cash flow for such definitive agreements to be entered into pursuant thereto (including by consummating the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”Equity Financing substantially concurrently therewith), (biii) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” negotiate and enter into definitive agreements with respect thereto on terms and conditions described in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Debt Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available Commitments (subject to the extent such partial period is within 135 days exercise of any “flex” provisions contained therein) on or prior to the date of the latest audited or reviewed financial statements for the Business, Closing Date and (c), if iv) enforce its rights under the Debt Financing Commitments. To the extent requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Buyer shall keep Seller informed on a reasonably current basis of the status of its efforts to arrange the Financing (or Alternative Financing).
(b) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Financing Commitments for any reason other than due to the reasonable, documented out-of-pocket costs incurred breach by the Company or Seller or of any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 respective representations, warranties or covenants contained herein or as a result of the failure of a condition contained herein to be satisfied by the contraryCompany or Seller, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyeras applicable, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify promptly notify Seller in writing and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable best efforts to respond arrange to such comments obtain alternative financing from alternative sources on terms not materially less favorable taken as a whole (as determined in a manner reasonably satisfactory the reasonable discretion of Buyer) to Seller)Buyer than those contained in the Debt Financing Commitments in an amount, (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere when added with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing).existing cash on hand and
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Buyer Financing. Seller acknowledges that The Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it Parent shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure satisfy the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations requirements of the Debt Commitment Letters that are within its control and to obtain the funding contemplated by and on the terms contained therein. If the Debt Commitment Letters are terminated or the funding contemplated thereby shall not otherwise be available, the Buyer Parent shall, if requested in writing by the Sellers' Representative within five (5) Business Days of the date on which the Debt Commitment Letters are terminated or Seller or its Subsidiaries)the funding contemplated thereby shall not otherwise be available, including (aseek alternative source(s) using for the Required Debt Financing. If such request is made, the Buyer Parent shall use commercially reasonable efforts to deliver (i) an unaudited balance sheet for find alternative financing and enter into commitment letters reflecting such alternative financing in form and substance that is no less favorable to the Business as of June 30Buyer Parent, 2011 the Buyer and the related statement of operations Acquired Companies (from and cash flow for after the six months ended June 30, 2011 Closing) to that provided in the Debt Commitment Letters and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available otherwise reasonably acceptable to the extent such partial period is within 135 days Sellers' Representative, a copy of the date of the latest audited or reviewed financial statements for the Business, and which shall be attached hereto (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and than fee letters which shall not be used provided) to replace the Debt Commitment Letters and incorporated herein (the "REPLACEMENT DEBT COMMITMENT LETTERS"), which Replacement Debt Commitment Letters shall be delivered to the Sellers' Representative promptly following the execution by the parties thereto. Following the date hereof, any amendment, termination or cancellation of any Debt Commitment Letter or Replacement Debt Commitment Letters or any information known to the Buyer that makes it reasonably likely that the financing set forth in connection withthe Debt Commitment Letters or Replacement Debt Commitment Letters will not be obtained shall be promptly disclosed to the Sellers' Representative. If any Lender fails to fund any such financing, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time such Lender to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries communicate in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 writing directly to the contrarySellers' Representative the circumstances and reasons therefor; provided, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with however, that the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions failure of any prospectus or confidential information memorandum related Lender to the Financing that contain or are based upon any provide such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller communication shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and deemed a third party, (iv) Buyer will not unreasonably interfere with the operation breach of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or the receipt this covenant by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing).
Appears in 1 contract
Buyer Financing. Seller acknowledges that (a) Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used shall and shall cause its Affiliates to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable best efforts to cooperate with Buyer’s efforts take, or cause to secure be taken, all actions, and to do, or cause to be done all things necessary, customary or advisable to consummate the Financing contemplated by the Financing Commitments on the terms and conditions described therein as soon as practicable following the date hereof (provided that such requested cooperation does not unreasonably interfere with taking into account the ongoing operations of the Business or Seller or its SubsidiariesMarketing Period), including (a) using commercially reasonable best efforts to deliver (i) an unaudited balance sheet for maintain in effect the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” Financing Commitments in connection accordance with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 terms and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available subject to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and conditions thereof (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives modified pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement Debt Commitment Letters), provided that there will be no obligation to extend the duration of such Financing Commitments beyond their initial terms; (except ii) negotiate definitive agreements with respect to the Financing contemplated by the Financing Commitments in accordance with the terms and conditions (including any related “flex” provisions) set forth in the Debt Commitment Letters or on such other terms and conditions acceptable to Buyer so long as such terms and conditions do not include any additional conditions other than those set forth in the Debt Commitment Letters that would reasonably be expected to materially impair, delay or prevent consummation of the Debt Financing, and entering into such definitive agreements, (iii) satisfy on a prompt and timely basis all the conditions to the Financing (and complying with all the obligations) contemplated by the Financing Commitments to the extent required such conditions (and obligations) relate to be disclosed under applicable securities laws Buyer and are in connection with an offering Buyer’s of securities any Affiliate of Buyer’s control, including by seeking a waiver (if deemed advisable by Buyer; ) of any applicable conditions, (iv) if the conditions to the availability of the Financing have been satisfied or waived, cause the funding of the facilities under the Financing Commitments and in connection therewith (v) otherwise comply with Buyer’s covenants and other obligations under the Financing Commitments and the definitive agreements related to the Financing.
(b) Buyer will take such actions shall give Sellers’ Representative prompt notice of (i) any actual material breach or default, termination, cancellation or repudiation of the Financing Commitments or other Financing Document (as Seller may reasonably request to limit defined below) by any such disclosure and/or to protect the confidentiality thereof)party thereto of which Buyer becomes aware, (ii) Seller shall be permitted a reasonable period (which period will take into account the form if and timing when Buyer becomes aware that any portion of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as Financing contemplated by any Financing Commitment is not available (other than any reduction thereof corresponding to such form and timingthe amount of proceeds received from the issuance of any debt or equity securities in connection therewith) to comment on those portions of any prospectus or confidential information memorandum related to consummate the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller)transactions contemplated hereby, (iii) Seller shall not the receipt of any written notice or other written communication from any Person with respect to any (A) actual or threatened breach, default, termination, rescission or withdrawal by any party to any Financing Commitment or (B) material dispute or disagreement between or among any parties to the Financing Documents with respect to the obligation to fund the Financing or the amount of the Financing Commitment to be obligated funded at Closing, as may be modified pursuant to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, the terms of the Debt Commitment Letters (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For but excluding for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing Commitments), (iv) if Buyer determines in connection good faith it will not be able to obtain any portion of the Financing on the terms, in the manner and from the sources contemplated by any Financing Commitment or the definitive agreements with respect thereto (such definitive agreements related to the Financing, neither Buyer nor any of its potential financing sources maycollectively, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of with the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased AssetsFinancing Commitments, the Facilities “Financing Documents”) that is sufficient for the Financing Purposes and (v) the Real Property. Notwithstanding anything entrance into, and copies of, any Financing Documents or amendments, replacements or supplements to any Financing Commitment.
(c) Without limiting the contrary hereinobligation to provide such information without request as provided in the immediately preceding paragraph, as soon as reasonably practicable, but in any event within three Business Days, after the date Sellers’ Representative delivers to Buyer a written request therefor, Buyer acknowledges and agrees that shall provide any information reasonably requested by Sellers’ Representative relating to any circumstance referred to in clauses (i) the Closing is not conditioned upon consummating any Financing or the receipt by Buyer through (v) of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing).Section 7.13
Appears in 1 contract
Buyer Financing. Seller acknowledges that Buyer may undertake an equity and/or debt financing (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries), including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject Subject to the terms and conditions of this Section 5.12, the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable best efforts to respond to such comments arrange the Financing as promptly as practicable and in a manner reasonably satisfactory timely fashion substantially on the terms and conditions described in the Commitment Letters, including using reasonable best efforts to Seller(a) maintain in effect the commitment for the Financing set forth in the Commitment Letters, (b) negotiate and execute definitive agreements with respect thereto on substantially the terms and conditions contemplated by the Commitment Letters (including any flex terms in the Debt Commitment Letters), (iiic) Seller shall not be obligated satisfy or obtain consent to disclose any information if waive (and cause its Affiliates to satisfy or obtain consent to waive), on a timely basis, all conditions applicable to the Buyer and its Affiliates in such disclosure would violate any agreement between Seller Commitment Letters and the definitive agreements related thereto that are within their control and (d) upon the satisfaction or its Subsidiaries and a third partywaiver of all the conditions precedent under Article VI, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct consummate or cause to be conducted any sampling consummate the Financing at or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related prior to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real PropertyClosing. Notwithstanding anything herein to the contrary hereincontrary, prior to the Closing, the Buyer acknowledges and agrees that shall not, without the prior written consent of the Seller, permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Debt Commitment Letter if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing (unless the Equity Financing or CDIB Financing is increased by an equivalent amount such that the aggregate funds that would be available to the Buyer at the Closing is (taking into account the financing contemplated by the Equity Commitment Letter and the CDIB Commitment Letter) would not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations be sufficient to consummate the transactions contemplated hereby to occur on the Closing Date; and (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing, in each case, in a manner that would reasonably be expected to materially delay or prevent the Closing; provided, however, that the Buyer shall have the right without requiring any consent of the Seller to (A) add or replace arrangers, bookrunners, agents or similar entities, (B) increase the amount of Debt Financing or replace or reallocate one or more facilities with one or more new facilities or modify one or more facilities to replace, reallocate or otherwise modify the Debt Commitment Letter in a manner that would not reasonably be expected to prevent or materially delay the availability of the Debt Financing on the Closing Date, (C) correct typographical errors, and (D) modify pricing and implement or exercise any of the “market flex” provision in the Debt Commitment Letter. Notwithstanding anything herein to the contrary, prior to the Closing, the Buyer shall not, without the prior written consent of the Seller, permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Equity Commitment Letters. Subject to the terms and conditions of this Section 5.12, if any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable flex terms) contemplated in the Closing).Debt Commitment Letter (other than as a result of a 57
Appears in 1 contract
Samples: Stock Purchase Agreement (Ascena Retail Group, Inc.)
Buyer Financing. Seller acknowledges that (a) Buyer may undertake an equity and/or debt financing shall (the “Financing”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall i) use its commercially reasonable best efforts to cooperate with Buyer’s efforts take, or cause to secure be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Financing described in the Commitment Letters on the terms and conditions described in the Commitment Letters (provided that such requested cooperation does not unreasonably interfere with including the ongoing operations exercise of so-called “flex” provisions in the Business or Seller or its Subsidiariesfee letter related to the Secured Debt Commitment Letter) as promptly as practicable (taking into account the Marketing Period), including (a) using commercially reasonable best efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required maintain in full force and effect the Commitment Letters until consummation of the transactions contemplated by this Agreement and to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability negotiate and execute definitive agreements with respect to the Financing. Financing on the terms contained in the Commitment Letters (including any “flex” provisions applicable to the Secured Debt Commitment Letter) or on other terms that are no less favorable to Buyer than those contained in the Commitment Letters (including any “flex” provisions applicable to the Secured Debt Commitment Letter), which terms shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against not in any and all Damages suffered or incurred by any respect expand on the conditions to the funding of them in connection with the Financing and any information utilized in connection therewith, except to at the extent that such Damages result from Closing or arise out reduce the aggregate amount of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required Financing available to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed funded on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that (i) the Closing is not conditioned upon consummating any Financing or Date below the receipt by Buyer of any funds amount necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations to consummate the transactions contemplated hereby (the “Financing Agreements”), (B) satisfy on a timely basis (taking into account the expected timing of the Marketing Period) (or obtain the waiver of) all conditions and covenants applicable to Buyer in the Commitment Letters and such Financing Agreements that are to be satisfied by Buyer, if the conditions to the Financing have been satisfied, and to consummate the Financing at or prior to the Closing, including by taking enforcement action (including through litigation pursued in good faith) to cause the Financing Sources, lenders and other Persons committing to provide the Financing to comply with their obligations under the Commitment Letters and the Financing Agreements and to fund such Financing at Closing, (C) fully enforce its rights under the Commitment Letters and the Financing Agreements and (ii) comply with its obligations under the Commitment Letters and the Financing Agreements to the extent the failure to comply with such obligations would adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing at Closing. Buyer shall keep the Company informed on a reasonably current basis in reasonable detail of any material developments concerning the status of the Financing which impact the availability of the Financing.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions (including any “flex” provisions applicable thereto) contemplated in any Commitment Letter, Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain alternative financing from alternative sources in an amount sufficient, when added to the portion of the Financing that is available and Cash on Hand and the other cash available to Buyer and its Affiliates, to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses (“Alternative Financing”) as promptly as practicable following the occurrence of such event (taking into account the Marketing Period) and to obtain, and when obtained, to provide the Company with a copy of, new financing commitment(s) that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”); provided, that in no event shall the Buyer be obligated to accept or pursue any Alternative Financing if it is materially less favorable in any respect than the Debt Financing contemplated by the Debt Commitment Letters. The provisions of this Section 7.10 and Section 7.11 shall be applicable to the Alternative Financing and, if applicable, any reference in this Agreement to “Financing” shall include “Alternative Financing”, any reference to “Commitment Letters” shall include the “Alternative Financing Commitment Letter” and any references to “Financing Agreements” shall include the definitive documentation relating to any such Alternative Financing. Notwithstanding anything to the contrary contained herein, in no event shall Buyer be required pursuant to this Agreement to agree to pay to the Financing Sources providing the Financing any additional fees or to increase any interest rates applicable to the Financing, except as expressly required pursuant to the Commitment Letters in existence as of the date hereof or in the associated fee letter referenced therein or related thereto.
(c) Buyer shall promptly (and, in any event, within two (2) Business Days of knowledge thereof) notify the Company in writing (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any Commitment Letters or any Financing Agreement, if such breach or default would reasonably be expected to result in a material delay of, or in any way materially limit, the availability of the Financing, (ii) of the receipt by Buyer or any of its Affiliates or Representatives of any written notice or other written communication from any Financing Source with respect to any (A) actual or alleged breach, default, termination or repudiation by any party to the Commitment Letters or any Financing Agreement or any provision of the Financing contemplated pursuant to the Commitment Letters or any Financing Agreement (including any proposal by any Financing Source to withdraw, terminate or make a material change in the terms of (including the amount of Financing contemplated by) the Commitment Letters) or (B) material dispute or disagreement between or among any parties to any Commitment Letter or any Financing Agreement (other than ordinary course negotiations) with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, in each case, that would make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or materially delay the availability of the Financing, and (iii) if for any reason Buyer believes in good faith that there is a material possibility that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Commitment Letters or the Financing Agreements and (iv) of the termination or expiration of any Commitment Letter or any Financing Agreement.
(d) Buyer shall not permit or consent to (i) any amendment, supplement or modification being made to any Commitment Letter if such amendment, supplement or modification would (A) change, expand or impose new conditions precedent to the funding of the Financing from those set forth therein on the date hereof, (B) change the timing of the funding of the Financing thereunder in a manner reasonably expected to impair, delay or prevent the availability of all or a portion of the Financing or the consummation of the transactions contemplated by this Agreement, (C) reduce the aggregate cash amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing (except as set forth in any “flex” provisions existing on the date hereof) to an amount less than the amount required to consummate the transactions contemplated hereby or (D) otherwise adversely affect the ability of Buyer to consummate the transactions contemplated by this Agreement or the timing of the Closing (collectively, the “Restricted Commitment Letter Amendments”) (provided, that Buyer may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letters as of the date hereof (but not to make any other prohibited changes)) or (ii) early termination of any Commitment Letter. For purposes of this Agreement, references to any “Commitment Letter” shall include such document as permitted or required by this Section 7.10 to be amended, modified or waived, in each case from and after such amendment, modification or waiver.
Appears in 1 contract
Samples: Stock Purchase Agreement (Envision Healthcare Corp)
Buyer Financing. (a) Buyer shall, and shall cause its Subsidiaries to, use its reasonable best efforts to obtain, or cause to be obtained, the Financing on the terms, and conditions, described in the Financing Commitments, including using its reasonable best efforts to (i) promptly negotiate definitive agreements on the terms and conditions contained in the Debt Financing Commitment (including any market flex provisions) or on the terms that, taken as a whole, are no less favorable to Buyer than the terms contained in the Debt Financing Commitment (including any “flex” provisions applicable thereto), in each case which terms shall not in any respect (A) expand on or modify in any manner (other than by a waiver of) the conditions to the funding of the Financing at the Closing without the consent of Seller acknowledges that Buyer may undertake (such consent not to be unreasonably withheld, delayed or conditioned), or (B) reduce the aggregate amount of the Financing available to be funded on the Closing Date (or in the event the Closing Date is January 1, 2016, then to be funded on January 4, 2016) unless such amount is replaced with an amount of new equity and/or debt financing on conditions no less favorable to Seller than the terms set forth in the Financing Commitments for the Equity Financing included in the Financing as of the Agreement Date (the “FinancingFinancing Agreements”), the proceeds of which may be used to fund all or a portion of the Purchase Price. Seller agrees that it shall use its commercially reasonable efforts to cooperate with Buyer’s efforts to secure the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business or Seller or its Subsidiaries), including (a) using commercially reasonable efforts to deliver (i) an unaudited balance sheet for the Business as of June 30, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) the statement of operations and cash flow for the six months ended June 30, 2010 (collectively, the “Interim Financial Statements”), (b) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” in connection with the Financing, which comfort letters shall comply with the requirements of PCAOB AU Section 634 and cover such periods as are addressed by the Business Financial Statements and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information for the Business is available to the extent such partial period is within 135 days of the date of the latest audited or reviewed financial statements for the Business, and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyer, (B) have any liability or any obligation under any agreement or document related to the Financing or (C) be required to incur any other liability with respect to the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith, except to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted satisfy (or obtain a reasonable period (which period will take into account the form and timing of the Financing, and Buyer will keep Seller reasonably informed waiver of) on a contemporary timely basis as or cause the satisfaction (or waiver) on a timely basis of all conditions in the Financing Commitments and the Financing Agreements applicable to such form and timing) Buyer that are to comment on those portions of any prospectus be satisfied by Buyer to consummate the Financing at or confidential information memorandum related prior to the Financing that contain or are based upon any such non-public or other confidential information (and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller)Closing, (iii) Seller shall not be obligated consummate the Financing on or prior to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third partythe date on which the Closing is required to occur pursuant to Section 8.1, (iv) Buyer will not unreasonably interfere enforce its rights under the Financing Commitments and Financing Agreements, including through litigation pursued in good faith and (v) comply with its obligations under the operation of Seller or its Subsidiaries’ business in connection herewithFinancing Commitments. For the avoidance of doubt, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities and the Real Property. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that if (ix) all or a portion of the Debt Financing structured as high yield debt or contemplated to be sold pursuant to a Rule 144A transaction has not been issued or sold on or prior to the Closing is not conditioned upon consummating any Financing or the receipt by Buyer of any funds necessary Date, (y) all conditions precedent to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or modify Buyer’s obligations hereunder shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing) and (z) the bridge financing contemplated by the Debt Financing Commitment is available, Buyer shall use its reasonable best efforts to cause the proceeds of the bridge financing to finance, in part, the Required Amount to allow the Closing to occur when it would be scheduled to occur pursuant to Section 8.1.
(b) In the event that, notwithstanding the use of reasonable best efforts by Buyer to satisfy its obligations under Section 6.15(a), any portion of the Debt Financing becomes unavailable on the terms and conditions (including any market flex provisions) contemplated in the Debt Financing Commitments (unless such portion is not reasonably required to consummate the transactions contemplated hereby by this Agreement), Buyer shall promptly notify Seller (and in any event, within two Business Days after Buyer becomes so aware) thereof and use its reasonable best efforts to obtain alternative financing on terms that are not materially less favorable to Buyer than the Debt Financing contemplated by the Debt Financing Commitments (including any “flex” provisions applicable thereto) and/or Financing Agreements, as applicable, in an amount sufficient to pay, when added to the ClosingBuyer Equity Financing and to the portion of the Debt Financing that is available, the Required Amount as promptly as reasonably practicable following the occurrence of such event but no later than the Business Day following the final day of the Marketing Period; provided that such alternative financing shall not have any of the effects described in clauses (A) through (E) of clause (c)(i) below. Buyer shall deliver to Seller true and complete copies of the new financing commitment and related fee letter, and any related Contracts (redacted in the manner described in Section 5.5(b)) pursuant to which any such alternative source shall have committed to provide Buyer with any portion of the Debt Financing substantially concurrently with the execution thereof.
(c) Buyer shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Financing Commitments or the Financing Agreements; provided, however, that (i) without the prior written consent of Seller, no such amendment, replacement, supplement, modification or waiver shall (A) reduce (or have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount in respect of the Debt Financing (except as set forth in any flex provisions existing on the Agreement Date)), (B) add conditions precedent to the Financing or amend, replace, supplement or modify any existing conditions precedent to the Financing in a manner that would reasonably be expected to prevent, impede or delay or make the funding of the Financing less likely to occur (or satisfaction of the conditions to the Financing), (C) be reasonably expected to prevent, impede or materially delay the availability of the Financing, or (D) adversely affect the ability of Buyer to enforce or cause the enforcement of its rights under the Financing Commitments or the Financing Agreements; and (ii) it is understood and agreed that Buyer may amend the Debt Financing Commitment to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Debt Financing Commitment as of the Agreement Date and amend titles, allocations and the fee arrangements with respect to the existing and additional lenders, arrangers, bookrunners, agents, managers or similar entities.
(d) To the extent Buyer obtains alternative financing pursuant to Section 6.15(b), or amends, replaces, supplements, modifies or waives any of the Financing pursuant to Section 6.15(c), references to the “Financing” and “Financing Commitments” (and other like terms in this Agreement) shall be deemed to refer to such alternative financing, or the Financing as so amended, replaced, supplemented, modified or waived.
Appears in 1 contract
Samples: Purchase Agreement (Symantec Corp)
Buyer Financing. Seller acknowledges that (a) The Buyer may undertake an equity and/or debt shall use its reasonably diligent efforts to arrange and obtain financing (including negotiating and entering into definitive agreements (the “Financing Agreements”) upon completion of the negotiations related thereto with respect to such financing) in the aggregate amount sufficient to refinance the Existing Credit Facility and the Buyer Credit Facility and to satisfy the Company’s and the Buyer’s obligations to pay all Transaction Expenses and fees, costs and expenses incurred by the Buyer in connection with the transactions contemplated herein (the “Financing”) on financial terms (including with respect to commitment fees, interest rate, pre-payment penalties (if any), dilutive impact on the proceeds of which may be used to fund all or a portion stockholders of the Purchase Price. Seller agrees Buyer (if applicable), etc.,) and on other terms and conditions reasonably satisfactory to the Buyer in its sole discretion, exercising that it discretion in a good faith manner.
(b) Upon execution of the Financing Agreements, Buyer shall use its commercially reasonable reasonably diligent efforts to cooperate with Buyer’s (i) satisfy, on a timely basis, all conditions applicable to Buyer set forth in the Financing Agreements that are within its reasonable control, and (ii) consummate the Financing contemplated by the Financing Agreements at or prior to the Closing. If all conditions in the Financing Agreements have been satisfied or, upon funding will be satisfied, Buyer shall use its reasonable diligent efforts to secure cause such lenders and the other Persons providing such Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under the Financing Agreements. In the event that Buyer is unable to cause such lenders and the other Persons providing the Financing to fund on the Closing Date and is unable to enforce its rights under the Financing Agreements, Buyer shall use its reasonably diligent efforts to arrange and obtain alternate Financing on financial terms (provided including with respect to commitment fees, interest rate, pre-payment penalties (if any), dilutive impact on the stockholders of the Buyer (if applicable), etc.,) and on other terms and conditions reasonably satisfactory to the Buyer in its sole discretion, exercising that discretion in a good faith manner.
(c) The Company shall, and shall cause its Subsidiaries and its and their respective representatives to, provide such requested cooperation does not unreasonably interfere (including with respect to timeliness) in connection with the ongoing operations arrangement of the Business or Seller or its Subsidiaries)Financing as may be reasonably requested by the Buyer, including (ai) providing to the Buyer from time to time information regarding the Company and its industry reasonably requested by the sources providing the Financing and assisting with identification of any portion of such information that constitutes material non-public information and using commercially reasonable efforts to deliver (i) update any such information to the extent contained in an unaudited balance sheet for offering document if the Business as Company becomes aware of June 30any new material information, 2011 and the related statement of operations and cash flow for the six months ended June 30, 2011 and (ii) facilitating and promoting negotiations between the statement of operations Buyer and cash flow for the six months ended June 30existing senior lenders to the Company, 2010 (collectivelyparticipating in meetings, the “Interim Financial Statements”)presentations, road shows, due diligence sessions with prospective Financing sources and sessions with rating agencies, (biii) using commercially reasonable efforts to cause its independent auditors to deliver customary “comfort letters” assisting with the preparation of materials for rating agency presentations, offering documents, business projections and similar marketing documents required in connection with the Financing, which comfort letters shall comply with (iv) as promptly as practicable, furnishing the requirements Buyer and its Financing sources information reasonably requested by any of PCAOB AU Section 634 them, (v) permitting the prospective Financing sources to evaluate the Company’s current assets, cash management and cover such periods as are addressed by the Business Financial Statements accounting systems, policies and the Interim Financial Statements and are required under Regulation S-X to be included in a registration statement for a Financing registered with the Securities and Exchange Commission, together with negative assurance for any subsequent partial period for which the applicable financial information procedures relating thereto for the Business is available to the extent such partial period is within 135 days purposes of the date of the latest audited or reviewed financial statements for the Business, establishing collateral arrangements and (c), if requested by Buyer, providing such information to the underwriters, initial purchasers, lenders or establishing bank and other financing parties in any such proposed Financing as may be reasonably requested in connection with such parties’ due diligence investigation of the Business, including permitting Buyer’s lenders or their agents to conduct an on-site evaluation of the Hydrocarbon Inventory of the Business (provided that any such evaluation of the Hydrocarbon Inventory shall not have any effect on, and shall not be used in connection with, the determination of the Inventory Value or any other matter that is the subject of Section 2.08). Buyer shall promptly, upon request by Seller from time to time, reimburse Seller for the reasonable, documented out-of-pocket costs incurred by Seller or any of its Subsidiaries in connection with such cooperation (including reasonable attorneys’ and accountants’ fees). Notwithstanding anything in this Section 7.11 to the contrary, neither Seller nor any of its Subsidiaries shall (A) be required to incur any cost or expense accounts in connection with the foregoing unless Seller is reasonably satisfied that such amount will be promptly reimbursed by Buyerforegoing, (Bvi) have any liability or any obligation under any agreement or document related in connection with a 144A offering, assisting (including issuing customary representation letters) the Buyer in obtaining usual and customary comfort letters and the consent of the accountants to include the Audited Financial Statements in the offering materials, (vii) promptly providing quarterly and monthly financial statements (excluding footnotes) to the Financing or extent available and prepared by the Company in the ordinary course of business, and (Cviii) be required as of the Closing Date, taking all corporate actions necessary to incur any other liability with respect to authorize the consummation of the Financing. Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and its and their respective directors, officers, employees, representatives and advisors from and against any and all Damages suffered or incurred by any of them in In connection with the Financing and any information utilized in connection therewith, except offering materials related to the extent that such Damages result from or arise out of the gross negligence or willful misconduct of Seller or its Subsidiaries. Buyer agrees that (i) all non-public or other confidential information provided by Seller or its Subsidiaries or any of their respective representatives to Buyer or its representatives pursuant to this Section 7.11 shall be kept confidential in accordance with and subject to the terms of the Confidentiality Agreement (except to the extent required to be disclosed under applicable securities laws in connection with an offering of securities by Buyer; and in connection therewith Buyer will take such actions as Seller may reasonably request to limit any such disclosure and/or to protect the confidentiality thereof), (ii) Seller shall be permitted a reasonable period (which period will take into account the form and timing syndication of the Financing, and Buyer will keep Seller reasonably informed on a contemporary basis as to such form and timing) to comment on those portions of any prospectus or confidential information memorandum related the Company hereby consents to the Financing that contain or are based upon any such non-public or other confidential information (use of its and Buyer shall use its reasonable efforts to respond to such comments in a manner reasonably satisfactory to Seller), (iii) Seller shall not be obligated to disclose any information if such disclosure would violate any agreement between Seller or its Subsidiaries and a third party, (iv) Buyer will not unreasonably interfere with the operation of Seller or its Subsidiaries’ business in connection herewith. For the avoidance of doubtlogos, in connection with the Financing, neither Buyer nor any of its potential financing sources may, under any circumstances, conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the Seller or its Subsidiaries or the Business, including the Purchased Assets, the Facilities trademarks and the Real Propertyservice marks. Notwithstanding anything to the contrary set forth herein, Buyer none of the Company and any of its Subsidiaries shall be required to pay any commitment or other similar fee in connection with the financing contemplated by the Financing prior to the Closing Date.
(d) Each party acknowledges and agrees that (i) the Closing is not conditioned upon consummating any obligations of each party with respect to the Financing are only as set forth in this Section 6.7, and no other provision herein, including Section 6.5 and Section 6.8, shall be deemed to expand or the receipt by Buyer of any funds necessary to pay the Purchase Price and (ii) the failure of Buyer to consummate any Financing shall not alter or otherwise modify Buyer’s obligations to consummate the transactions contemplated hereby (including the Closing)such obligations.
Appears in 1 contract
