Buyer’s Financing Activities. (a) Buyer acknowledges and agrees that Seller and its Affiliates have no responsibility for any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect to any offering materials and other documents prepared by or on behalf of or utilized by Buyer or its Affiliates, or Buyer’s financing sources, in connection with Buyer’s financing activities in connection with the transactions contemplated hereby which include any information provided by Seller or any of its Affiliates (including the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”). (b) Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment), (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing Agreements”), so that the Financing Agreements are in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Financing at or prior to Closing. Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall keep the Seller reasonably informed of material developments in respect of the financing process relating thereto. In the period between the date hereof and the Closing Date, Seller shall, upon request of Buyer, use all reasonable efforts to cause the Companies and their Subsidiaries, along with their respective auditors and consultants, to reasonably cooperate with Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements with banks and other lenders. Such cooperation shall include, without limitation, preparations for the obtaining or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders of the Companies and their Subsidiaries, preparations for the implementation of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of financial statements and financial data complying with Regulation S-X and Regulation S-K under the Securities Act. Buyer shall promptly, upon request by Seller, reimburse the Seller for all reasonable, documented out of pocket expenses incurred by the Company or their Subsidiaries in connection with such cooperation; provided, that Seller must obtain the written consent of Buyer prior to incurring such expenses in excess of $100,000.00. (c) Buyer covenants and agrees that, in the event that the Initial Cash Price is reduced pursuant to the adjustment set forth in Section 2.3(d), then the amount of the aggregate commitment pursuant to the Debt Financing Commitments shall be reduced by 89% of the amount by which the Initial Cash Price is reduced pursuant to Section 2.3(d).
Appears in 2 contracts
Samples: Purchase Agreement (Cendant Corp), Purchase Agreement (Affinion Loyalty Group, Inc.)
Buyer’s Financing Activities. (a) Buyer acknowledges Buyers acknowledge and agrees that Seller ASD and its Affiliates have no responsibility for any financing that each Buyer may raise in connection with the transactions contemplated hereby including with respect to any hereby. Any offering materials and other documents prepared by or on behalf of or utilized by each Buyer or its Affiliates, or such Buyer’s financing sources, in connection with such Buyer’s financing activities in connection with the transactions contemplated hereby which include any information provided by Seller ASD or any of its Affiliates (including the Companies and their Subsidiaries)Affiliates, including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”), in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that neither ASD nor any of its Affiliates nor any employees thereof have any responsibility for the content of such document and disclaim all responsibility therefor and shall further include a disclaimer with respect to ASD and its Affiliates in any oral disclosure with respect to such financing.
(b) Each Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Debt Financing set forth therein (including by consummating and the Equity Debt Financing pursuant to the terms and conditions of the Equity Financing Commitment)Commitments, (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing Agreements”)Financing, so that the Financing Agreements such agreements are in effect as promptly as practicable but in any event no later than the Closing Date and Date, (iii) consummate the Debt Financing at or prior to ClosingClosing and (iv) enforce its rights under the Debt Financing Commitments. Each Buyer shall provide to the Seller ASD copies of all documents relating to the Debt Financing and shall keep the Seller ASD reasonably informed of material developments in respect of the financing process relating thereto. In Prior to the period between the date hereof and the Closing DateClosing, Seller shall, upon request of Buyer, use all reasonable efforts to cause the Companies and their Subsidiaries, along with their respective auditors and consultants, to reasonably cooperate with Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements with banks and other lenders. Such cooperation shall include, without limitation, preparations for the obtaining or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders of the Companies and their Subsidiaries, preparations for the implementation of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of financial statements and financial data complying with Regulation S-X and Regulation S-K under the Securities Act. each Buyer shall promptlynot agree to, upon request by Selleror permit, reimburse any amendment or modification of, or waiver under, the Seller for all reasonable, documented out of pocket expenses incurred by Financing Commitments or other documentation relating to the Company or their Subsidiaries in connection with such cooperation; provided, that Seller must obtain Financing without the prior written consent of ASD other than in accordance with the terms or this Agreement and in a manner which would not be adverse to the interests of ASD or any of its Affiliates. For the avoidance of doubt, in the event (X) all or any portion of the Debt Financing structured as high yield financing has not been consummated; (Y) all closing conditions contained in Section 8.1 and Section 8.2 (other than the actual delivery of the certificate described therein) have been satisfied; and (Z) the bridge facilities contemplated by the Debt Commitment Letters (or alternative bridge financing obtained in accordance with this Agreement) are available on the terms and conditions described in the Debt Commitment Letters (or replacements thereof), then each Buyer shall cause the proceeds of such bridge financing to be used to replace such high yield financing no later than three Business Days following the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2. In addition, each 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 obtain the Equity Financing, including using reasonable best efforts to (i) maintain in effect the Equity Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to such Buyer in such Equity Commitment Letter that are within its control, if any, (iii) consummate the Equity Financing at or prior to incurring such expenses Closing and (iv) enforce its rights under the Equity Commitment Letter. Further for the avoidance of doubt, if the Financing (or any alternative financing) has not been obtained, each Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement and effect the Closing on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the conditions set forth in excess of $100,000.00Section 8.1 and Section 8.2 and to each Buyer’s termination rights under ARTICLE IX, if applicable.
(c) If, notwithstanding the use of reasonable best efforts by Buyer covenants and agrees that, in the event that the Initial Cash Price is reduced pursuant to the adjustment set forth in satisfy its obligations under Section 2.3(d7.13(b), then the amount any of the aggregate commitment pursuant to Debt Financing or the Debt Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated prior to the Closing, in whole or in part, for any reason, such Buyer shall (i) promptly notify ASD of such expiration or termination and the reasons therefor and (ii) use its reasonable best efforts promptly to arrange for alternative financing (which shall be reduced in an amount sufficient to pay, when added with the Equity Financing, the Required Amounts from other sources and which do not, without the prior consent of ASD, include any conditions of such alternative debt financing that are more onerous than or in addition to the conditions set forth in the Debt Financing) to replace the debt financing contemplated by 89% such expired or terminated commitments or agreements.
(d) Prior to the Closing, ASD shall, and shall cause its Subsidiaries, and shall use its reasonable best efforts to cause its and their respective representatives to, provide to each Buyer and its Subsidiaries all cooperation reasonably requested such Buyer that is necessary in connection with the Debt Financing and the transactions contemplated by this Agreement, including (i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, in each case, upon reasonable advance notice, and (ii) assisting with the amount preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing. Nothing in this Section 7.13(d) shall require ASD or any of its Subsidiaries to provide any assistance to the extent it would interfere unreasonably with the ongoing business or operations of ASD or any of its Subsidiaries. Notwithstanding anything in this Section 7.13(d) to the contrary, neither ASD nor any of its Subsidiaries shall be required to pay any commitment fee or similar fee or incur any liability with respect to the Debt Financing. Each Buyer shall, promptly upon request by which the Initial Cash Price is reduced ASD, reimburse ASD for all documented out of pocket costs and expenses incurred by ASD or any of its Subsidiaries, officers, employees, representatives and advisors in connection with their respective obligations pursuant to this Section 2.3(d7.13(d). Each Buyer shall indemnify and hold harmless ASD and its Subsidiaries, directors, officers, employees, representatives and advisors from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Debt Financing and any information utilized in connection therewith.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (American Standard Companies Inc)
Buyer’s Financing Activities. (a) Buyer acknowledges and agrees that Seller and its Affiliates have no responsibility for any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect to any hereby. Any offering materials and other related documents prepared by or on behalf of or utilized by Buyer or its Affiliates, or Buyer’s financing sources, in connection with Buyer’s financing activities in connection with the transactions contemplated hereby which hereby, that include any information provided by Seller or any of its Affiliates (including the Companies Company and their its Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”), in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that neither Seller nor any of its Affiliates nor any employees thereof have any responsibility for the content of such document and disclaim all responsibility therefor and shall further include a disclaimer with respect to Seller and its Affiliates in any oral disclosure with respect to such financing.
(b) Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing set forth therein (including by consummating and the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment)Commitments, (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing Agreements”)Financing, so that the Financing Agreements such agreements are in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Financing at or prior to Closing. Buyer shall provide to the Seller copies of all final documents relating to the Debt Financing and shall keep the Seller reasonably informed of material developments in respect of the financing process relating thereto. Prior to the Closing, Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Financing Commitments or other final documentation relating to the Financing without the prior written consent of Seller (such consent not to be unreasonably withheld), except as otherwise permitted under Section 5.13(d). In the period between the date hereof and the Closing Date, Seller shall, upon request of Buyer, Seller shall, and shall use all reasonable best efforts to cause the Companies its Subsidiaries, and its and their SubsidiariesAffiliates and Representatives to, along with their respective auditors and consultants, to reasonably cooperate with Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements connection with banks and other lenders. Such cooperation shall includethe Financing, including without limitation, preparations for subject to Section 5.13(a), (i) preparation of all required financial statements relating to the obtaining or release of any liens, providing access to properties Company and other assets for third party appraisals, obtaining its Subsidiaries and any required consents pro forma financial information; (ii) reasonable participation in meetings and road shows, if any; (iii) the provision of landlords information relating to the Financing reasonably requested by Buyer; and lenders of the Companies and their Subsidiaries, preparations for the implementation of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries (iv) reasonable assistance in respect of offering of debt or equity securities and the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Buyer. In addition, at or before the Closing Date, Seller will use its reasonable best efforts to provide to Buyer any financial statements information relating to the Company and financial data complying with Regulation S-X and Regulation S-K under its Subsidiaries that is reasonably required to obtain the Securities ActFinancing. Buyer shall promptly, upon request by Seller, reimburse the Seller for all reasonable, documented out of out-of-pocket expenses incurred by the Company Seller or their Subsidiaries its Affiliates or Representatives in connection with such cooperation; provided, that Seller must obtain the written consent of Buyer prior to incurring such expenses in excess of $100,000.00.
(c) If, notwithstanding the use of reasonable best efforts by Buyer covenants and agrees thatto satisfy its obligations under Section 5.13(b), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify Seller of such expiration or termination and the event reasons therefor and (ii) use its reasonable best efforts promptly to arrange for alternative financing (which shall be in an amount sufficient to pay the Required Amounts from other sources and which do not include any conditions of such alternative financing that the Initial Cash Price is reduced pursuant are more onerous than or in addition to the adjustment conditions set forth in the Financing) to replace the financing contemplated by such expired or terminated commitments or agreements.
(d) Notwithstanding anything to the contrary contained in Section 2.3(d5.13(b), then at any time Buyer may replace the amount of Financing with alternative financing arrangements which (i) provide Buyer with sufficient funds to pay the aggregate commitment pursuant Required Amounts prior to or concurrent with the Closing, (ii) are no less favorable to the Debt Seller than the Financing Commitments and (iii) do not prevent or materially impair or delay the Closing (the “Financing Alternative”). In the event Buyer replaces the Financing with any Financing Alternative, the terms of Section 5.13(b) shall be reduced by 89% of no longer apply with respect to the amount by which Financing, but shall thereafter apply with respect to the Initial Cash Price is reduced pursuant to Section 2.3(d)Financing Alternative.
Appears in 1 contract
Samples: Share Purchase Agreement (Health Care Property Investors Inc)
Buyer’s Financing Activities. (a) Buyer acknowledges Prior to the Closing, Seller shall, and agrees that Seller shall cause each of the Companies and their respective Subsidiaries to, and shall use its Affiliates have no responsibility for any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect reasonable best efforts to any offering materials cause their respective directors, officers, employees, consultants and legal, accounting, investment banking and other documents prepared by or on behalf of or utilized professional advisors to, provide to Buyer all cooperation reasonably requested by Buyer or its Affiliates, or Buyer’s financing sources, that is reasonably necessary in connection with Buyer’s efforts to obtain debt financing activities in connection with the consummation of the transactions contemplated hereby which include any (the “Debt Financing”), Buyer’s assumption of the Assumed Loans and the transactions contemplated by this Agreement, including (i) furnishing Buyer and its financing sources such customary financial and other pertinent information provided by Seller or any of its Affiliates (including regarding the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”).
(b) Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain respective Subsidiaries that is in effect the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment), (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing Agreements”), so that the Financing Agreements are in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Financing at or prior to Closing. Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall keep the Seller reasonably informed of material developments in respect of the financing process relating thereto. In the period between the date hereof and the Closing Date, Seller shall, upon request of Buyer, use all reasonable efforts to cause the Companies and their Subsidiaries, along with their respective auditors and consultants, to reasonably cooperate with Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements with banks and other lenders. Such cooperation shall include, without limitation, preparations for the obtaining or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders possession of the Companies and their Subsidiariesrespective Subsidiaries as may reasonably be requested by Buyer, preparations for (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the implementation of a new cash management system parties acting as lead arrangers or agents for, and attending roadshows by prospective lenders of, the Debt Financing and senior management of the Companies and their Subsidiaries respective Subsidiaries), due diligence sessions (including providing cooperation with due diligence investigations generally to the extent customary and reasonable and not unreasonably interfering with the business of the Companies and their respective Subsidiaries) and sessions with rating agencies in respect of offering of debt or equity securities connection with the Debt Financing, (iii) providing reasonable assistance to Buyer and its financing sources in the preparation of financial statements customary bank information memoranda or similar customary marketing materials, authorization letters, private placement memorandum, bank information memorandum and financial data complying rating agency presentations relating to the Debt Financing, (iv) reasonably cooperating with Regulation Sthe marketing efforts of Buyer and its financing sources for all or any portion of the Debt Financing, (v) providing and executing customary closing documents as may be reasonably and mutually agreed by Buyer and Seller, including (A) customary documentation and information required by bank regulatory authorities under applicable “know-X your-customer” and Regulation Santi-K under money laundering rules and regulations, including the Securities ActUniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act of 2001), (B) customary officer certificates from the Companies with respect to solvency matters, (C) customary agreements, documents or certificates that facilitate the creation, perfection or enforcement of liens securing the Debt Financing (including original copies of all certificated securities (with transfer powers executed in blank)), as are reasonably requested by Buyer or its financing sources and (D) customary pledge and security documents, (vi) using commercially reasonable efforts to obtain consents of accountants reasonably requested by Buyer and customary for financings similar to the Debt Financing and (vii) as may be reasonably requested by Buyer, and no earlier than immediately prior to the Closing, transfer or otherwise restructure its ownership of the Companies and any of their Subsidiaries, the Company Properties or other assets, including formation of new entities, in each case, pursuant to documentation reasonably acceptable to Seller. Nothing in this Section 6.17 shall require Seller, the Companies and their respective Subsidiaries to (w) provide any assistance to the extent it would interfere unreasonably with the ongoing business or operations of Seller, the Companies and their respective Subsidiaries, or cause a breach of any of the organizational documents or contractual obligations of any of the foregoing, (x) execute or deliver any certificate, document or agreement in connection with the Debt Financing unless the effectiveness of such certificate, document or agreement is conditioned upon the occurrence of the Closing, (y) issue any offering or information document or (z) provide any legal opinion or other opinion of counsel, or any information that would, in its good faith opinion, result in a violation of Law or loss of attorney-client privilege. Buyer shall promptlyshall, promptly upon request by Seller, reimburse the Seller for for, or advance to Seller all reasonable, documented out of and reasonable out-of-pocket costs and expenses incurred or to be incurred by Seller, the Company Companies and their respective Subsidiaries, or by their Subsidiaries respective directors, officers, employees, consultants or legal, accounting, investment banking or other professional advisors, in connection with such cooperation; provided, that Seller must obtain the written consent of Buyer prior to incurring such expenses in excess of $100,000.00.
(c) Buyer covenants and agrees that, in the event that the Initial Cash Price is reduced their respective obligations pursuant to the adjustment set forth in Section 2.3(d), then the amount of the aggregate commitment pursuant to the Debt Financing Commitments shall be reduced by 89% of the amount by which the Initial Cash Price is reduced pursuant to Section 2.3(d).this Section
Appears in 1 contract
Buyer’s Financing Activities. (a) Buyer acknowledges and agrees that Seller and its Affiliates and their respective directors, officers, employees, agents and representatives shall not have no any responsibility for for, or incur any liability to, any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect by this Agreement or (except for Seller’s obligations hereunder) any cooperation provided pursuant to any offering materials and other documents prepared by or on behalf of or utilized by Buyer or its Affiliates, or Buyer’s financing sources, in connection with Buyer’s financing activities in connection with the transactions contemplated hereby which include any information provided by Seller or any of its Affiliates (including the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”)this Section 4.17.
(b) Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing set forth therein (including by consummating and the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment)Commitments, (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing Agreements”)Financing, so that the Financing Agreements such agreements are in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Financing at or prior to Closing. Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall keep the Seller reasonably informed of material developments in respect of the financing process relating thereto. In Prior to the period between Closing, Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the date hereof Financing Commitments or other documentation relating to the Financing in any material respect adverse (including with respect to conditionality or timing) to Seller without the prior written consent of Seller (it being understood that Buyer may agree to amend the Financing Commitments to provide for the assignment of a portion of the debt commitment to additional agents or arrangers and the Closing Date, Seller shallgranting such persons approval rights with respect to certain matters as are customarily granted to additional agents or arrangers). Buyer shall promptly, upon request by Seller, reimburse Seller for all documented out-of-pocket expenses incurred by Seller or its Affiliates or representatives in connection with such cooperation.
(c) If, notwithstanding the use of reasonable best efforts by Buyer to satisfy its obligations under Section 4.17(b), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated or otherwise becomes unavailable prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify Seller of such expiration or termination and the reasons therefor and (ii) use its reasonable best efforts promptly to arrange for alternative financing (which shall be in an amount sufficient to pay the Required Amounts from other sources and which do not include any conditions of such alternative debt financing that are materially more onerous than or in addition to the conditions set forth in the Financing), on comparable or more favorable terms to Buyer, the Company and its Subsidiaries to replace the financing contemplated by such expired, terminated or unavailable commitments or agreements.
(d) Prior to the Closing and, with respect to clause (iv), prior to and following the Closing, Seller shall provide, shall, prior to the Closing, cause the Acquired Companies to provide, and shall use all its reasonable best efforts to cause the respective officers, employees, representatives and advisors, including legal and accounting advisors, of Seller and, prior to the Closing, the Acquired Companies and their Subsidiaries, along with their respective auditors and consultantsto provide, to Buyer all cooperation reasonably cooperate requested by Buyer that is necessary, proper or advisable in connection with Buyer’s financing and the other transactions contemplated by this Agreement (in each case, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller and the Acquired Companies) including using reasonable best efforts with respect to (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing, (iii) executing and delivering at Closing any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Buyer (including a certificate of the chief executive officer of any of the Acquired Companies with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Financing), (iv) furnishing Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements Financing sources with banks financial and other lenders. Such cooperation shall includepertinent information regarding the Acquired Companies as may be reasonably requested by Buyer, without limitation, preparations for the obtaining or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders of the Companies and their Subsidiaries, preparations for the implementation of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of including all financial statements and financial data complying with of the type required by Regulation S-X and Regulation S-K under the Securities ActAct and in compliance with the other rules and regulations promulgated by the United States Securities and Exchange Commission (the “SEC”) (including the Financial Statements) to consummate the offerings of debt securities contemplated by the Financing Commitments at the time during the Company’s fiscal year such offerings will be made and to effect a registered exchange offer with the SEC with respect to any such debt securities, (v) obtaining accountants’ comfort letters (including comfort levels customary in similar types of transactions for pro forma financial information and related adjustments), legal opinions, surveys and title insurance as reasonably requested by Buyer; provided that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Acquired Companies, (vi) at Closing enter into interest rate hedge transactions, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (viii) obtaining any necessary rating agencies’ confirmation or approvals for the Financing, (ix) if the Closing has not occurred prior to August 15, 2006, providing Buyer by no later than August 15, 2006 with an unaudited combined balance sheet and unaudited combined statements of income and cash flows of the Acquired Companies as of and for the three months ended June 30, 2006 (the “Closing Financial Statements”); and (x) taking all corporate actions necessary to permit the consummation of the Financing and to permit the proceeds thereof to be made available as of the Closing Date; provided, however, that, under no circumstances shall the Acquired Companies be required to incur any obligations or liabilities that arise prior to the Closing. Whether or not the Closing occurs, Buyer shall promptlyshall, promptly upon request by Seller, reimburse the Seller for all reasonable, reasonable and documented out of out-of-pocket expenses costs incurred by Seller or (to the Company or their Subsidiaries extent paid prior to Closing) the Acquired Companies in connection with such cooperation; provided, that Seller must obtain . The Company hereby consents to the written consent use of Buyer prior to incurring such expenses its and its Subsidiaries’ logos in excess of $100,000.00connection with the Financing.
(ce) Buyer covenants and agrees that, The Company shall provide monthly financial reports of the Acquired Companies prepared in the event that the Initial Cash Price is reduced pursuant ordinary course of business to the adjustment set forth in Section 2.3(d), then the amount of the aggregate commitment pursuant to the Debt Financing Commitments shall be reduced by 89% of the amount by which the Initial Cash Price is reduced pursuant to Section 2.3(d)Buyer.
Appears in 1 contract
Samples: Purchase Agreement (Cendant Corp)
Buyer’s Financing Activities. (a) Buyer acknowledges and agrees that Seller and that, other than the obligations expressly set forth in this Section 5.21, DuPont, its Affiliates and their respective Representatives have no responsibility for any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect to any offering materials hereby. Each of Buyer and other documents prepared by or on behalf of or utilized by Buyer or its Affiliates, or DuPont acknowledges and agrees that Buyer’s financing sources, in connection with Buyer’s financing activities in connection with obligation to consummate the transactions contemplated hereby which include any information provided by Seller is not subject to a financing condition under Article VII or any of its Affiliates (including the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”)otherwise.
(b) Buyer shall and shall cause its Subsidiaries to use its commercially their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate, on or prior to the Closing Date, the Debt Financing contemplated by the Debt Commitment Letters on the terms set forth therein, including using its reasonable best efforts to (i) comply with and maintain in effect the Financing set forth therein (including by consummating Debt Commitment Letters until the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment)transactions contemplated hereby are consummated, (ii) negotiate and enter into definitive financing agreements with respect to the Debt Financing as on terms and conditions contained in the Debt Commitment Letters (including all “market flex” provisions thereof) so that such agreements are in effect on the Closing Date, (iii) satisfy on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letters and the definitive agreements with respect thereto and (iv) subject to the satisfaction or waiver of the conditions set forth in the Debt Commitment Letters, enforce its rights under the Debt Commitment Letters, including using its reasonable best efforts to cause the lenders and other Persons providing the Debt Financing Commitments (the “Financing Agreements”), so that the Financing Agreements are in effect as promptly as practicable but in any event no later than to fund on the Closing Date and the Debt Financing contemplated by the Debt Commitment Letters (iii) or such lesser amount as may be required to consummate the Financing at or prior to Closingtransactions contemplated hereby and make the payments contemplated by the Required Amount). Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall keep the Seller DuPont reasonably informed of material developments in respect of Buyer’s efforts to arrange the financing process Financing. Without limiting the generality of the foregoing, Buyer shall give DuPont prompt notice (A) of any breach or default by any party under the Financing Commitments of which Buyer becomes aware, (B) of the receipt or delivery of any written notice or other written communication, in each case from any Person with respect to (x) any actual or potential breach, default, termination or repudiation by any party to any Financing Commitment related to the Financing or (y) any material dispute or disagreement between or among parties to any of the Financing Commitments with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing and (C) if at any time for any reason Buyer believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions contemplated by any of the Financing Commitments; provided, that, notwithstanding any other provision hereof, in no event will Buyer be under any obligation to disclose any information that is subject to attorney-client or similar privilege. Buyer shall promptly, and in any event within five days after DuPont delivers a written request to Buyer, provide any information reasonably requested by DuPont relating theretoto any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. In Prior to the period between Closing, without the prior written consent of DuPont, Buyer shall not agree to, or permit, any amendment, modification or supplement of, or waiver under, the Financing Commitments to the extent such amendment, modification, supplement or waiver would (1) reduce the aggregate amount to be funded under the Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees), unless, in the case of a reduction in the aggregate amount to be funded under the Debt Financing, the Equity Financing is increased by a corresponding amount, (2) amend, modify or supplement the conditions or contingencies to the Financing in a manner that would reasonably be expected to make it less likely the Financing will be funded or imposes new or additional conditions or expands any existing condition to the receipt of the Financing or (3) adversely affect the ability of Buyer to enforce its rights against the other parties to the Financing Commitments or any definitive agreements with respect thereto or otherwise would reasonably be expected to delay funding of the Financing or make funding of the Financing less likely to occur. Notwithstanding the foregoing, 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 and, in connection therewith, amend the economic and other arrangements with respect to the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not impact the amount of the Debt Financing to be funded at the Closing Dateor, Seller shallindividually or in the aggregate, upon request would not be reasonably expected to delay or prevent the Closing and would not have affected the accuracy of Buyerthe representations and warranties contained in Section 4.7 if such amendments had been reflected in the Debt Commitment Letters as originally executed. For the avoidance of doubt, in the event all or any portion of the Debt Financing structured as high yield financing has not been consummated on or prior to the Closing, Buyer shall use all its reasonable best efforts to cause the Companies proceeds of the bridge facilities contemplated by the Debt Commitment Letters (or alternative bridge financing obtained in accordance with this Agreement) to fund the Preliminary Purchase Price to be available and their Subsidiariesto be used to replace such high yield financing sufficiently in advance to allow the Closing to occur when it would be scheduled to occur pursuant to Section 2.2(a). In addition, along with their respective auditors Buyer shall take, or cause to be taken, all actions and consultantsto do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including taking all actions necessary to (I) maintain in effect the Equity Commitment Letter, (II) satisfy on a timely basis all conditions applicable to Buyer in such Equity Commitment Letter that are within its control, if any, (III) subject to the satisfaction of any conditions to funding set forth therein, consummate the Equity Financing at or prior to the Closing and (IV) enforce its rights under the Equity Commitment Letter. Further for the avoidance of doubt, whether or not the Financing (or any Alternative Financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement and effect the Closing on the terms contemplated by this Agreement (subject to the satisfaction or waiver of the conditions set forth in Article VII and to Buyer’s termination rights under Article VIII, if applicable). Buyer agrees that, to reasonably cooperate with the extent provided in Section 9.7, DuPont shall be entitled to seek specific performance of the obligations of Buyer and the Investors pursuant to the Equity Commitment Letters, subject to the terms and limitations thereof and the limitations set forth in Section 9.7.
(c) If, notwithstanding the use of reasonable best efforts by Buyer to satisfy its Affiliates obligations under Section 5.21(b), Buyer becomes aware that any portion of the Debt Financing has become unavailable on terms and conditions (including the flex provisions) contemplated in satisfying the Debt Commitment Letters, Buyer shall promptly notify DuPont and use its reasonable best efforts promptly to arrange for alternative financing (A) in an amount sufficient to pay, when added to the Equity Financing, the Required Amount, and (B) on terms and conditions that are no less favorable to Buyer, in the aggregate, than those set forth in the Debt Commitment Letters (the “Alternative Financing”) to replace the Debt Financing, to be consummated no later than the Business Day following the final day of the Marketing Period. In the event any condition Alternative Financing is obtained, any reference in this Agreement to financing set out in Buyer’s “Debt Financing” shall be deemed to include the Alternative Financing. Buyer shall deliver to DuPont true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Buyer with banks and other lendersany portion of the Debt Financing substantially concurrently with the execution thereof. Such cooperation For purposes of this Agreement, “Marketing Period” shall includemean the first period of fifteen (15) consecutive Business Days after the date of this Agreement (provided that the Marketing Period shall not commence, without limitationthe consent of Buyer, preparations for prior to the obtaining later of January 4, 2013 or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders the first Business Day after two (2) calendar days immediately following the receipt by Buyer of the Companies and their SubsidiariesRequired Financing Information) throughout which (A) Buyer shall have the Required Financing Information, preparations for during which period such information shall remain compliant in all material respects at all times with the implementation applicable provisions of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of financial statements and financial data complying with Regulation S-X and Regulation S-K under the Securities Act. Buyer , and (B) the conditions set forth in Sections 7.1(a) and 7.3 shall promptly, upon request be satisfied assuming the Closing were to be scheduled for any time during such fifteen (15) consecutive Business Day period (except to the extent that such conditions by Seller, reimburse their nature can only be satisfied at the Seller for all reasonable, documented out of pocket expenses incurred by the Company or their Subsidiaries in connection with such cooperationClosing); provided, however, that Seller must obtain the written consent of Buyer Marketing Period shall not be deemed to have commenced if (x) prior to incurring such expenses in excess of $100,000.00.
(c) Buyer covenants and agrees that, in the event that the Initial Cash Price is reduced pursuant to the adjustment set forth in Section 2.3(d), then the amount completion of the aggregate commitment pursuant to the Debt Financing Commitments Marketing Period, PricewaterhouseCoopers LLP shall be reduced by 89% of the amount by which the Initial Cash Price is reduced pursuant to Section 2.3(d).have withdrawn its
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Buyer’s Financing Activities. (a) Buyer acknowledges Until the earlier to occur of the Closing and agrees that Seller and its Affiliates have no responsibility for any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect to any offering materials and other documents prepared by or on behalf of or utilized by Buyer or its AffiliatesOutside Date, or Buyer’s financing sources, in connection with Buyer’s financing activities in connection with the transactions contemplated hereby which include any information provided by Seller or any of its Affiliates (including the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”).
(b) Buyer shall and shall cause its subsidiaries to use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, necessary or cause to be done, all things necessary, proper or reasonably advisable to obtain the proceeds in respect of the Financing contemplated by the Commitment Letters on or prior to the Closing Date, including using commercially reasonable efforts with respect to the following: (i) maintain maintaining in effect the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment), Commitment Letters in accordance with their terms; (ii) enter negotiating and entering into definitive financing agreements at or prior to the Closing with respect to the Debt Financing as contemplated by to the extent the execution and delivery of such agreements are conditions to funding the Financing on the Closing (the “Definitive Documentation”) consistent with the terms and conditions contained in the Debt Commitment Letter (and any flex provisions in the Fee Letter) or would not otherwise adversely affect the conditionality, enforceability or availability of the Debt Financing Commitments (or the “Financing Agreements”)ability of Buyer to consummate the transactions contemplated herein, so that the Financing Agreements such agreements are in effect as promptly as practicable but on a timely basis and, in any event no event, later than the Closing Date and Date; (iii) satisfying (or obtaining the waiver of) on a timely basis all conditions applicable to obtaining the Financing contemplated by the Commitment Letters set forth in the Definitive Documentation and the Equity Commitment Letter that are within the control of Buyer and MedPlast Holdings, Inc. and (iv) in the event the conditions set forth in the Commitment Letters and this Agreement are satisfied and Buyer is required to consummate the Financing at or prior Closing, using commercially reasonable efforts to Closing. Buyer shall provide to the Seller copies of all documents relating to cause the Debt Financing Sources to consummate the Debt Financing at Closing. If and when reasonably requested in writing by GB Ltd., Buyer shall keep the Seller GB Ltd. reasonably informed of material developments in respect of the financing process relating theretoprocess. In Without limiting the period between generality of the date hereof and foregoing, prior to the Closing DateClosing, Seller shallBuyer shall give GB Ltd. reasonably prompt notice (any in any event, upon request of Buyer, use all reasonable efforts to cause the Companies and their Subsidiaries, along with their respective auditors and consultants, to reasonably cooperate with Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements with banks and other lenders. Such cooperation shall include, without limitation, preparations for the obtaining or release within three (3) Business Days) (A) of any liensmaterial breach or default related to the Financing of which Buyer becomes aware, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders (B) of the Companies and their Subsidiariesreceipt or delivery of any written notice or other written communication, preparations for in each case from any person party to the implementation Debt Commitment Letter (or any Affiliate of a new cash management system and attending roadshows such person) with respect to (I) any actual or potential breach, default, termination, or repudiation by any party to the management Debt Commitment Letter with respect to the obligation to fund the Financing or (II) any material dispute or disagreement between or among parties to any of the Companies and their Subsidiaries in Commitment Letters with respect of offering of debt or equity securities and the preparation of financial statements and financial data complying with Regulation S-X and Regulation S-K under the Securities Act. Buyer shall promptly, upon request by Seller, reimburse the Seller for all reasonable, documented out of pocket expenses incurred by the Company or their Subsidiaries in connection with such cooperation; provided, that Seller must obtain the written consent of Buyer prior to incurring such expenses in excess of $100,000.00.
(c) Buyer covenants and agrees that, in the event that the Initial Cash Price is reduced pursuant to the adjustment set forth in Section 2.3(d), then obligation to fund the Financing or the amount of the aggregate commitment pursuant Financing to be funded at the Closing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or Debt Commitment Letter) or (C) of the expiration or termination for any reason of the Debt Commitment Letter or the Equity Commitment Letter (or if any person party thereto attempts or purports in writing to terminate the Debt Commitment Letter or the Equity Commitment Letter, whether or not such attempted or purported termination is valid). In connection with any notice thereof, Buyer shall promptly provide information reasonably requested in writing by GB Ltd. relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Prior to the Closing, without the prior written consent of GB Ltd., Buyer shall not agree to, or permit, any amendment, modification, supplement, termination, replacement or waiver under the Debt Commitment Letter or the Fee Letter; provided that Buyer shall have the right from time to time to amend, supplement, modify, terminate, waive, replace or extend any of its rights under, the Debt Commitment Letter or the Fee Letter so long as such amendment, modification, supplement, termination, waiver, extension or replacement would not reasonably be expected to (A) reduce the amounts to be funded under the Debt Financing Commitments available to fund the Required Amount on the Closing Date (unless other Financing is increased by a corresponding amount or such amounts are paid from readily available cash on hand) or (B) expand on, or impose new or additional conditions precedent, or amend or modify any conditions precedent in each case which would reasonably be expected to prevent, materially delay, or materially impair the availability of the Debt Financing when required to be funded or the satisfaction of the conditions to obtaining the Debt Financing, in each case on the Closing Date; provided that, for the avoidance of doubt, no consent from GB Ltd. shall be reduced by 89% required for: (1) any amendment, replacement, supplement or modification of the amount Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a lender), or (2) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof. Prior to Closing, after any amendment, supplement, modification, replacement or waiver of the Debt Commitment Letter or the Fee Letter in accordance with this Section 5.6(a), Buyer shall promptly deliver to GB Ltd. a true and complete copy thereof (provided that such fee letter may be redacted in accordance with Section 4.8(b)). For purposes of this Agreement, the terms “Debt Commitment Letter,” and “Fee Letter” shall include and mean such documents as amended, supplemented, modified, waived, replaced or extended in compliance with this Section 5.6(a) and references to “Debt Financing” or “Financing” shall include and mean the financing contemplated by which the Initial Cash Price Debt Commitment Letter, or Fee Letter as so amended, supplemented, modified, waived, replaced or extended, as applicable.
(b) If, notwithstanding the use of commercially reasonable efforts by Buyer to satisfy its obligations under Section 5.6(a), the Debt Financing or the Debt Commitment Letter (or any Definitive Documentation relating thereto) expires or is reduced pursuant terminated prior to Section 2.3(d).the earlier to occur of
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Samples: Master Purchase and Sale Agreement (Integer Holdings Corp)
Buyer’s Financing Activities. (a) Buyer acknowledges Subject to Section 9.7(b) and agrees that Seller the terms and its Affiliates have no responsibility for any financing that Buyer may raise in connection with conditions of this Agreement, and until the transactions contemplated hereby including with respect earlier to any offering materials occur of the Closing and other documents prepared by or on behalf of or utilized by Buyer or its Affiliatesthe Outside Date, or Buyer’s financing sources, in connection with Buyer’s financing activities in connection with the transactions contemplated hereby which include any information provided by Seller or any of its Affiliates (including the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”).
(b) Buyer shall and shall cause its controlled Affiliates to use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, necessary or cause to be done, all things necessary, proper or reasonably advisable to obtain the Financing contemplated by the Financing Commitments on or prior to the Closing Date, including using reasonable best efforts with respect to the following: (i) maintain maintaining in effect the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment), Commitments in accordance with their terms; (ii) enter negotiating and entering into definitive financing agreements at or prior to the Closing with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing AgreementsDefinitive Documentation”), ) consistent with the terms and conditions contained in the Debt Commitment Letter (and any flex provisions in the Fee Letter) so that the Financing Agreements such agreements are in effect as promptly as practicable but on a timely basis and, in any event no event, later than the Closing Date and Date, (iii) satisfying (or obtaining the waiver of) on a timely basis all conditions applicable to Buyer obtaining the Financing contemplated by the Financing Commitments set forth in the Definitive Documentation and the Equity Commitment Letter that are within the control of the Buyer, and (iv) in the event the conditions set forth in the Financing Commitments and this Agreement are satisfied and Buyer is required to consummate the Closing pursuant to Section 2.3, using reasonable best efforts to cause the Debt Financing Sources to consummate the Debt Financing at Closing and in the event the Debt Financing is funded or prior will be funded concurrently with the Funding of the Equity Financing at the Closing, using reasonable best efforts to Closingcause the Guarantors to fund, directly or indirectly, the Equity Financing. Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall keep the Seller SEE reasonably informed of material developments in respect of the financing process relating theretoprocess. Without limiting the generality of the foregoing, prior to the Closing Buyer shall give SEE reasonably prompt notice (any in any event, within three (3) Business Days) (A) of any material breach or default related to the Financing of which Buyer becomes aware, (B) of the receipt or delivery of any written notice or other written communication, in each case from any Person party to the Debt Commitment Letter (or any Affiliate of such Person) with respect to (1) any actual or potential breach, default, termination, or repudiation by any party to the Debt Commitment Letter with respect to the obligation to fund the Financing or (2) any material dispute or disagreement between or among parties to any of the Financing Commitments with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or Debt Commitment Letter), (C) of the expiration or termination for any reason of the Debt Commitment Letter, the Equity Commitment Letter, or any Definitive Documentation entered into in connection therewith (or if any Person party thereto attempts or purports in writing to terminate the Debt Commitment Letter, the Equity Commitment Letter, or any definitive agreements entered into in connection therewith, whether or not such attempted or purported termination is valid), and (D) if at any time for any reason Buyer believes in good faith that all or any portion of the Financing is unavailable on the terms and conditions contemplated by any of the Financing Commitments. In connection with any notice thereof, Buyer shall promptly provide information reasonably requested by SEE relating to any circumstance referred to in clause (A), (B), (C), or (D) of the period between immediately preceding sentence (other than information to the date hereof and extent that the provision thereof would violate or waive any attorney-client or other privilege, constitute attorney work product or violate or contravene any law, rule or regulation, or any obligation of confidentiality). Prior to the Closing, without the prior written consent of SEE, Buyer shall not agree to, or permit, any amendment, modification, supplement, termination, replacement or waiver under, the Equity Commitment Letter, the Debt Commitment Letter, the Fee Letter, the Engagement Letter or Definitive Documentation relating to the Financing; provided that Buyer shall have the right from time to time to amend, supplement, modify, terminate, waive, replace or extend any of its rights under, the Debt Commitment Letter, the Fee Letter, the Engagement Letter or Definitive Documentation with respect to the Debt Financing so long as such amendment, modification, supplement, termination, waiver, extension or replacement would not reasonably be expected to (A) reduce the amounts to be funded under the Debt Financing available to fund the Required Amount on the Closing Date (unless other Financing is increased by a corresponding amount or such amounts are paid from readily available cash on hand) or (B) expand on, or impose new or additional conditions precedent, or amend or modify any conditions precedent in each case which would reasonably be expected to (i) prevent, materially delay, or materially impair the availability of the Debt Financing when required to be funded or the satisfaction of the conditions to obtaining the Debt Financing, in each case on the Closing Date, Seller shall, upon request of Buyer, use all reasonable efforts to cause or (ii) materially adversely affect the Companies and their Subsidiaries, along with their respective auditors and consultants, to reasonably cooperate with Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements with banks and other lenders. Such cooperation shall include, without limitation, preparations for the obtaining or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders of the Companies and their Subsidiaries, preparations for the implementation of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of financial statements and financial data complying with Regulation S-X and Regulation S-K under the Securities Act. Buyer shall promptly, upon request by Seller, reimburse the Seller for all reasonable, documented out of pocket expenses incurred by the Company or their Subsidiaries in connection with such cooperation; provided, that Seller must obtain the written consent ability of Buyer prior to incurring such expenses in excess of $100,000.00.
(c) Buyer covenants and agrees that, in enforce its rights against the event that the Initial Cash Price is reduced pursuant to the adjustment set forth in Section 2.3(d), then the amount of the aggregate commitment pursuant other parties to the Debt Financing Commitments Commitment Letter; provided that, for the avoidance of doubt, no consent from SEE shall be reduced by 89% required for: (1) any amendment, replacement, supplement or modification of the amount by which Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Initial Cash Price is reduced pursuant to Section 2.3(d).Debt Commitment Letter as of the date of this
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Buyer’s Financing Activities. (a) Buyer acknowledges and agrees that Seller and that, other than the obligations expressly set forth in this Section 5.21, DuPont, its Affiliates and their respective Representatives have no responsibility for any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect hereby. Each of Buyer and DuPont acknowledges and agrees that Buyer's obligation to any offering materials and other documents prepared by or on behalf of or utilized by Buyer or its Affiliates, or Buyer’s financing sources, in connection with Buyer’s financing activities in connection with consummate the transactions contemplated hereby which include any information provided by Seller is not subject to a financing condition under Article VII or any of its Affiliates (including the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”)otherwise.
(b) Buyer shall and shall cause its Subsidiaries to use its commercially their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate, on or prior to the Closing Date, the Debt Financing contemplated by the Debt Commitment Letters on the terms set forth therein, including using its reasonable best efforts to (i) comply with and maintain in effect the Financing set forth therein (including by consummating Debt Commitment Letters until the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment)transactions contemplated hereby are consummated, (ii) negotiate and enter into definitive financing agreements with respect to the Debt Financing as on terms and conditions contained in the Debt Commitment Letters (including all "market flex" provisions thereof) so that such agreements are in effect on the Closing Date, (iii) satisfy on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letters and the definitive agreements with respect thereto and (iv) subject to the satisfaction or waiver of the conditions set forth in the Debt Commitment Letters, enforce its rights under the Debt Commitment Letters, including using its reasonable best efforts to cause the lenders and other Persons providing the Debt Financing Commitments (the “Financing Agreements”), so that the Financing Agreements are in effect as promptly as practicable but in any event no later than to fund on the Closing Date and the Debt Financing contemplated by the Debt Commitment Letters (iii) or such lesser amount as may be required to consummate the Financing at or prior to Closingtransactions contemplated hereby and make the payments contemplated by the Required Amount). Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall keep the Seller DuPont reasonably informed of material developments in respect of Buyer's efforts to arrange the financing process Financing. Without limiting the generality of the foregoing, Buyer shall give DuPont prompt notice (A) of any breach or default by any party under the Financing Commitments of which Buyer becomes aware, (B) of the receipt or delivery of any written notice or other written communication, in each case from any Person with respect to (x) any actual or potential breach, default, termination or repudiation by any party to any Financing Commitment related to the Financing or (y) any material dispute or disagreement between or among parties to any of the Financing Commitments with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing and (C) if at any time for any reason Buyer believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions contemplated by any of the Financing Commitments; provided, that, notwithstanding any other provision hereof, in no event will Buyer be under any obligation to disclose any information that is subject to attorney-client or similar privilege. Buyer shall promptly, and in any event within five days after DuPont delivers a written request to Buyer, provide any information reasonably requested by DuPont relating theretoto any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. In Prior to the period between Closing, without the prior written consent of DuPont, Buyer shall not agree to, or permit, any amendment, modification or supplement of, or waiver under, the Financing Commitments to the extent such amendment, modification, supplement or waiver would (1) reduce the aggregate amount to be funded under the Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees), unless, in the case of a reduction in the aggregate amount to be funded under the Debt Financing, the Equity Financing is increased by a corresponding amount, (2) amend, modify or supplement the conditions or contingencies to the Financing in a manner that would reasonably be expected to make it less likely the Financing will be funded or imposes new or additional conditions or expands any existing condition to the receipt of the Financing or (3) adversely affect the ability of Buyer to enforce its rights against the other parties to the Financing Commitments or any definitive agreements with respect thereto or otherwise would reasonably be expected to delay funding of the Financing or make funding of the Financing less likely to occur. Notwithstanding the foregoing, 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 and, in connection therewith, amend the economic and other arrangements with respect to the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not impact the amount of the Debt Financing to be funded at the Closing Dateor, Seller shallindividually or in the aggregate, upon request would not be reasonably expected to delay or prevent the Closing and would not have affected the accuracy of Buyerthe representations and warranties contained in Section 4.7 if such amendments had been reflected in the Debt Commitment Letters as originally executed. For the avoidance of doubt, in the event all or any portion of the Debt Financing structured as high yield financing has not been consummated on or prior to the Closing, Buyer shall use all its reasonable best efforts to cause the Companies proceeds of the bridge facilities contemplated by the Debt Commitment Letters (or alternative bridge financing obtained in accordance with this Agreement) to fund the Preliminary Purchase Price to be available and their Subsidiariesto be used to replace such high yield financing sufficiently in advance to allow the Closing to occur when it would be scheduled to occur pursuant to Section 2.2(a). In addition, along with their respective auditors Buyer shall take, or cause to be taken, all actions and consultantsto do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including taking all actions necessary to (I) maintain in effect the Equity Commitment Letter, (II) satisfy on a timely basis all conditions applicable to Buyer in such Equity Commitment Letter that are within its control, if any, (III) subject to the satisfaction of any conditions to funding set forth therein, consummate the Equity Financing at or prior to the Closing and (IV) enforce its rights under the Equity Commitment Letter. Further for the avoidance of doubt, whether or not the Financing (or any Alternative Financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement and effect the Closing on the terms contemplated by this Agreement (subject to the satisfaction or waiver of the conditions set forth in Article VII and to Buyer's termination rights under Article VIII, if applicable). Buyer agrees that, to reasonably cooperate with the extent provided in Section 9.7, DuPont shall be entitled to seek specific performance of the obligations of Buyer and the Investors pursuant to the Equity Commitment Letters, subject to the terms and limitations thereof and the limitations set forth in Section 9.7.
(c) If, notwithstanding the use of reasonable best efforts by Buyer to satisfy its Affiliates obligations under Section 5.21(b), Buyer becomes aware that any portion of the Debt Financing has become unavailable on terms and conditions (including the flex provisions) contemplated in satisfying the Debt Commitment Letters, Buyer shall promptly notify DuPont and use its reasonable best efforts promptly to arrange for alternative financing (A) in an amount sufficient to pay, when added to the Equity Financing, the Required Amount, and (B) on terms and conditions that are no less favorable to Buyer, in the aggregate, than those set forth in the Debt Commitment Letters (the "Alternative Financing") to replace the Debt Financing, to be consummated no later than the Business Day following the final day of the Marketing Period. In the event any condition Alternative Financing is obtained, any reference in this Agreement to financing set out in Buyer’s "Debt Financing" shall be deemed to include the Alternative Financing. Buyer shall deliver to DuPont true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Buyer with banks and other lendersany portion of the Debt Financing substantially concurrently with the execution thereof. Such cooperation For purposes of this Agreement, "Marketing Period" shall includemean the first period of fifteen (15) consecutive Business Days after the date of this Agreement (provided that the Marketing Period shall not commence, without limitationthe consent of Buyer, preparations for prior to the obtaining later of January 4, 2013 or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders the first Business Day after two (2) calendar days immediately following the receipt by Buyer of the Companies and their SubsidiariesRequired Financing Information) throughout which (A) Buyer shall have the Required Financing Information, preparations for during which period such information shall remain compliant in all material respects at all times with the implementation applicable provisions of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of financial statements and financial data complying with Regulation S-X and Regulation S-K under the Securities Act. Buyer , and (B) the conditions set forth in Sections 7.1(a) and 7.3 shall promptly, upon request be satisfied assuming the Closing were to be scheduled for any time during such fifteen (15) consecutive Business Day period (except to the extent that such conditions by Seller, reimburse their nature can only be satisfied at the Seller for all reasonable, documented out of pocket expenses incurred by the Company or their Subsidiaries in connection with such cooperationClosing); provided, however, that Seller must obtain the written consent of Buyer Marketing Period shall not be deemed to have commenced if (x) prior to incurring such expenses in excess the completion of $100,000.00.
(c) Buyer covenants and agrees thatthe Marketing Period, in the event that the Initial Cash Price is reduced pursuant PricewaterhouseCoopers LLP shall have withdrawn its audit opinion with respect to the adjustment set forth in Section 2.3(d), then Audited Financial Statements or (y) if the amount of the aggregate commitment pursuant to the Debt Financing Commitments shall be reduced by 89% of the amount by which the Initial Cash Price is reduced pursuant to Section 2.3(d).Marketing Period
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Buyer’s Financing Activities. (a) Buyer acknowledges and agrees that Seller and its Affiliates and their respective directors, officers, employees, agents and representatives shall not have no any responsibility for for, or incur any liability to, any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby including with respect by this Agreement or (except for Seller’s obligations hereunder) any cooperation provided pursuant to any offering materials and other documents prepared by or on behalf of or utilized by Buyer or its Affiliates, or Buyer’s financing sources, in connection with Buyer’s financing activities in connection with the transactions contemplated hereby which include any information provided by Seller or any of its Affiliates (including the Companies and their Subsidiaries), including any offering memorandum, banker’s book or similar document used, or any other written offering materials used (collectively, “Offering Materials”)this Section 4.17.
(b) Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing set forth therein (including by consummating and the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment)Commitments, (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing Agreements”)Financing, so that the Financing Agreements such agreements are in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Financing at or prior to Closing. Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall keep the Seller reasonably informed of material developments in respect of the financing process relating thereto. In Prior to the period between Closing, Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the date hereof Financing Commitments or other documentation relating to the Financing in any material respect adverse (including with respect to conditionality or timing) to Seller without the prior written consent of Seller (it being understood that Buyer may agree to amend the Financing Commitments to provide for the assignment of a portion of the debt commitment to additional agents or arrangers and the Closing Date, Seller shallgranting such persons approval rights with respect to certain matters as are customarily granted to additional agents or arrangers). Buyer shall promptly, upon request by Seller, reimburse Seller for all documented out-of-pocket expenses incurred by Seller or its Affiliates or representatives in connection with such cooperation.
(c) If, notwithstanding the use of reasonable best efforts by Buyer to satisfy its obligations under Section 4.17(b), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated or otherwise becomes unavailable prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify Seller of such expiration or termination and the reasons therefor and (ii) use its reasonable best efforts promptly to arrange for alternative financing (which shall be in an amount sufficient to pay the Required Amounts from other sources and which do not include any conditions of such alternative debt financing that are materially more onerous than or in addition to the conditions set forth in the Financing), on comparable or more favorable terms to Buyer, the Company and its Subsidiaries to replace the financing contemplated by such expired, terminated or unavailable commitments or agreements.
(d) Prior to the Closing and, with respect to clause (iv), prior to and following the Closing, Seller shall provide, shall, prior to the Closing, cause the Acquired Companies to provide, and shall use all its reasonable best efforts to cause the respective officers, employees, representatives and advisors, including legal and accounting advisors, of Seller and, prior to the Closing, the Acquired Companies and their Subsidiaries, along with their respective auditors and consultantsto provide, to Buyer all cooperation reasonably cooperate requested by Buyer that is necessary, proper or advisable in connection with Buyer’s financing and the other transactions contemplated by this Agreement (in each case, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller and the Acquired Companies) including using reasonable best efforts with respect to (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing, (iii) executing and delivering at Closing any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Buyer (including a certificate of the chief executive officer of any of the Acquired Companies with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Financing), (iv) furnishing Buyer and its Affiliates in satisfying any condition to financing set out in Buyer’s agreements Financing sources with banks financial and other lenders. Such cooperation shall includepertinent information regarding the Acquired Companies as may be reasonably requested by Buyer, without limitation, preparations for the obtaining or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders of the Companies and their Subsidiaries, preparations for the implementation of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of including all financial statements and financial data complying with of the type required by Regulation S-X and Regulation S-K under the Securities ActAct and in compliance with the other rules and regulations promulgated by the United States Securities and Exchange Commission (the “SEC“) (including the Financial Statements) to consummate the offerings of debt securities contemplated by the Financing Commitments at the time during the Company’s fiscal year such offerings will be made and to effect a registered exchange offer with the SEC with respect to any such debt securities, (v) obtaining accountants’ comfort letters (including comfort levels customary in similar types of transactions for pro forma financial information and related adjustments), legal opinions, surveys and title insurance as reasonably requested by Buyer; provided that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Acquired Companies, (vi) at Closing enter into interest rate hedge transactions, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (viii) obtaining any necessary rating agencies’ confirmation or approvals for the Financing, (ix) if the Closing has not occurred prior to August 15, 2006, providing Buyer by no later than August 15, 2006 with an unaudited combined balance sheet and unaudited combined statements of income and cash flows of the Acquired Companies as of and for the three months ended June 30, 2006 (the “Closing Financial Statements“); and (x) taking all corporate actions necessary to permit the consummation of the Financing and to permit the proceeds thereof to be made available as of the Closing Date; provided, however, that, under no circumstances shall the Acquired Companies be required to incur any obligations or liabilities that arise prior to the Closing. Whether or not the Closing occurs, Buyer shall promptlyshall, promptly upon request by Seller, reimburse the Seller for all reasonable, reasonable and documented out of out-of-pocket expenses costs incurred by Seller or (to the Company or their Subsidiaries extent paid prior to Closing) the Acquired Companies in connection with such cooperation; provided, that Seller must obtain . The Company hereby consents to the written consent use of Buyer prior to incurring such expenses its and its Subsidiaries’ logos in excess of $100,000.00connection with the Financing.
(ce) Buyer covenants and agrees that, The Company shall provide monthly financial reports of the Acquired Companies prepared in the event that the Initial Cash Price is reduced pursuant ordinary course of business to the adjustment set forth in Section 2.3(d), then the amount of the aggregate commitment pursuant to the Debt Financing Commitments shall be reduced by 89% of the amount by which the Initial Cash Price is reduced pursuant to Section 2.3(d)Buyer.
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Buyer’s Financing Activities. 6.17.1 Buyers acknowledge and agree that: (ai) Buyer acknowledges Sellers and agrees that Seller and its their Affiliates have no responsibility for any financing that Buyer Buyers may raise in connection with the transactions contemplated hereby including with respect to any offering materials and other documents prepared by or on behalf of or utilized by Buyer Buyers or its their Affiliates, or Buyer’s Buyers’ financing sources, in connection with Buyer’s Buyers’ financing activities in connection with the transactions contemplated hereby which include any information provided by Seller Sellers or any of its Affiliates their Affiliates; and (including ii) Buyers’ obligations to consummate and to cause to be consummated the Companies transactions contemplated by this Agreement and their Subsidiaries), including the Transfer Agreements are not subject to any offering memorandum, banker’s book condition or similar document used, or any other written offering materials used (collectively, “Offering Materials”)contingency with respect to the financing.
(b) Buyer shall 6.17.2 Buyers will use its commercially reasonable 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 to: (i) maintain in effect the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms and conditions of the Equity Financing Commitment), Commitment Letter; (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Financing Commitments (the “Financing Agreements”)financing, so that the Financing Agreements such agreements are in effect as promptly as practicable but in any event no later than the Closing Date Date; and (iii) consummate the Financing financing at or prior to Closing. Buyer shall provide to the Seller copies of all documents relating to the Debt Financing and shall Buyers will keep the Seller Delphi reasonably informed of material developments in respect of the financing process relating theretothereto and provide copies of the Commitment Letter as it may be revised. In the period between the date hereof and the Closing Date, Seller shall, upon request of BuyerBuyers, Sellers will, and will use all commercially reasonable efforts to cause the Companies its Affiliates and their Subsidiariesrepresentatives to, along with their respective auditors and consultants, to reasonably cooperate with Buyer and its Affiliates Buyers in satisfying any condition to financing set out in Buyer’s agreements connection with banks and other lendersthe financing. Such cooperation shall include, without limitation, preparations for the obtaining or release of any liens, providing access to properties and other assets for third party appraisals, obtaining any required consents of landlords and lenders of the Companies and their Subsidiaries, preparations for the implementation of a new cash management system and attending roadshows by the management of the Companies and their Subsidiaries in respect of offering of debt or equity securities and the preparation of financial statements and financial data complying with Regulation S-X and Regulation S-K under the Securities Act. Buyer shall Buyers will promptly, upon request by SellerSellers, reimburse the Seller Sellers for all reasonableall, documented out of out-of-pocket expenses incurred by the Company Sellers or their Subsidiaries Affiliates or representatives in connection with such cooperation; provided. If, that Seller must obtain notwithstanding the written consent use of Buyer commercially reasonable efforts by Buyers to satisfy their obligations under this Section 6.17.2, any of the financing or the Commitment Letter (or any definitive financing agreement entered with respect thereto) expire or are terminated prior to incurring such expenses in excess of $100,000.00.
(c) Buyer covenants and agrees thatthe Closing, in whole or in part, for any reason, Buyers will: (i) promptly notify Delphi of such expiration or termination and the event that reasons therefor; and (ii) use commercially reasonable efforts to promptly arrange for alternative financing (which will not contain any conditions in addition to those contained in such expired or terminated commitments or agreements) to replace the Initial Cash Price is reduced pursuant financing contemplated by such expired or terminated commitments or agreements in an amount sufficient to consummate the adjustment set forth in Section 2.3(d), then transactions contemplated by this Agreement and the amount of the aggregate commitment pursuant to the Debt Financing Commitments shall be reduced by 89% of the amount by which the Initial Cash Price is reduced pursuant to Section 2.3(d)Ancillary Agreements.
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