Common use of Committed Financing Clause in Contracts

Committed Financing. (a) Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate the Committed Financing or any Substitute Financing in an amount equal to the Required Amount, including, using reasonable best efforts to (i) (A) maintain in effect the Debt Commitment Letter and (B) negotiate, enter into and deliver definitive agreements with respect to the Committed Financing reflecting the terms contained in the Debt Commitment Letter (or with other terms agreed by Parent and the Financing Sources, subject to the restrictions on amendments of the Debt Commitment Letter set forth below), so that such any such agreements (other than customary post-closing agreements/deliverables) are in effect no later than the Closing and (ii) satisfy on a timely basis all the conditions to the Committed Financing and the definitive agreements related thereto that are in Parent’s (or its Subsidiaries’) control. Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Debt Commitment Letter. (b) Following the reasonable request therefor, Parent shall keep the Partnership reasonably informed on a timely basis of the status of Parent’s and its Subsidiaries’ efforts to obtain the Committed Financing, including providing copies of any amendment, modification or replacement of the Debt Commitment Letter (provided, that any fee letter may be redacted to remove the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Committed Financing) and shall give the Partnership prompt notice of (x) any material breach or default by any party to the Debt Commitment Letter or the definitive documentation related thereto of which Parent has become aware and (y) any condition precedent of the Committed Financing that Parent has any reason to believe will not be satisfied at the Closing Date; provided that neither Parent nor any of its affiliates shall be under any obligation to disclose any information that is subject to attorney-client or similar privilege to the extent such privilege is asserted in good faith or otherwise would violate or contravene any law or any obligation of confidentiality. Parent may amend, modify, replace, terminate, assign or agree to any waiver under the Debt Commitment Letter without the prior written approval of the Partnership; provided that Parent shall not, without the Partnership’s prior written consent, permit any such amendment, replacement, modification, assignment, termination or waiver to be made to, or consent to any waiver of, any provision of or remedy under the Debt Commitment Letter which would (i) reduce the aggregate cash amounts of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount) unless the aggregate amount of the Committed Financing following such reduction, together with cash on hand and other sources of funds of Parent on the Closing Date, would be equal to, or in excess of, the Required Amount, (ii) (x)impose new or additional conditions to the Committed Financing or (y) otherwise expand, amend, modify or waive any of the conditions to the Committed Financing or (iii) otherwise expand, amend, modify or waive any provision of the Debt Commitment Letter in a manner that, in the case of subclauses (ii)(y) or (iii), would reasonably be expected to (A) prevent, materially impair or materially delay the funding of the Committed Financing (or satisfaction of the conditions to the Committed Financing) on the Closing Date or (B) materially adversely affect the ability of Parent or any of its Subsidiaries to pay the Required Amounts at Closing; provided that notwithstanding the foregoing, Parent may modify, supplement or amend the Debt Commitment Letter to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement and (2) implement or exercise any “market flex” provisions contained in the Debt Commitment Letter. In the event that new commitment letters or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Debt Commitment Letter permitted pursuant to this Section 5.22 such new commitment letters or fee letters shall be deemed to be the “Debt Commitment Letter” for all purposes of this Agreement and references to “Committed Financing” herein shall include and mean the financing contemplated by the Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified, as applicable. Parent shall promptly deliver to the Partnership copies of any termination, amendment, modification, waiver or replacement of the Debt Commitment Letter. (c) If funds in the amounts set forth in the Debt Commitment Letter, or any portion thereof, become unavailable (other than in accordance with the terms of the Debt Commitment Letter), Parent shall, and shall cause its Subsidiaries to, as promptly as practicable following the occurrence of such event (i) notify the Partnership in writing thereof and (ii) use reasonable best efforts to obtain substitute financing, including, as applicable, a commitment to provide such substitute financing (on terms that are not materially less favorable to Parent, taken as a whole, than the terms as set forth in the Debt Commitment Letter, taking into account any “market flex” provisions thereof, and which does not include any conditions to the consummation of such substitute financing that are more onerous than the conditions set forth in the Committed Financing) sufficient, together with cash on hand and other sources of funds of Parent on the Closing Date, to enable Parent and its Subsidiaries to pay the Required Amount at Closing (the “Substitute Financing”) and, promptly after execution thereof, deliver to the Partnership true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form removing the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Committed Financing) or related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “Committed Financing” and any commitment letter for such Substitute Financing shall be deemed to be the “Debt Commitment Letter” for all purposes of this Agreement. (d) Notwithstanding the foregoing, compliance by Parent and its Subsidiaries with this Section 5.22 shall not limit or modify the Partnership’s right to seek specific performance to cause Parent to consummate the Merger, whether or not the Debt Financing is available.

Committed Financing. (a) Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate the Committed Financing or any Substitute Financing in an amount equal has delivered to the Required AmountCompany true, includingcorrect and complete copies of executed commitment letters (including all exhibits, using reasonable best efforts to schedules, annexes and amendments thereto), each attached hereto as Exhibit L, from the parties identified thereon (ithe “Commitment Parties”) (A) maintain in effect the Debt Commitment Letter and (B) negotiate, enter into and deliver definitive agreements with respect to the Committed Financing reflecting the terms contained in the Debt Commitment Letter (or with other terms agreed by Parent and the Financing Sources, subject to the restrictions on amendments of the Debt Commitment Letter set forth below), so that such any such agreements (other than customary post-closing agreements/deliverables) are in effect no later than the Closing and (ii) satisfy on a timely basis all the conditions to the Committed Financing and the definitive agreements related thereto that are in Parent’s (or its Subsidiaries’) control. Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Debt Commitment Letter. (b) Following the reasonable request therefor, Parent shall keep the Partnership reasonably informed on a timely basis of the status of Parent’s and its Subsidiaries’ efforts to obtain the Committed Financing, including providing copies of any amendment, modification or replacement of the Debt Commitment Letter (provided, that any fee letter may be redacted to remove the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Committed Financing) and shall give the Partnership prompt notice of (x) any material breach or default by any party to the Debt Commitment Letter or the definitive documentation related thereto of which Parent has become aware and (y) any condition precedent of the Committed Financing that Parent has any reason to believe will not be satisfied at the Closing Date; provided that neither Parent nor any of its affiliates shall be under any obligation to disclose any information that is subject to attorney-client or similar privilege to the extent such privilege is asserted in good faith or otherwise would violate or contravene any law or any obligation of confidentiality. Parent may amend, modify, replace, terminate, assign or agree to any waiver under the Debt Commitment Letter without the prior written approval of the Partnership; provided that Parent shall not, without the Partnership’s prior written consent, permit any such amendment, replacement, modification, assignment, termination or waiver to be made to, or consent to any waiver of, any provision of or remedy under the Debt Commitment Letter which would (i) reduce the aggregate cash amounts of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount) unless the aggregate amount of the Committed Financing following such reductioncommitment letters, together with cash on hand and other sources of funds of Parent on the Closing Date, would be equal to, or in excess ofall attachments thereto, the Required Amount“Commitment Letters”, (ii) (x)impose new or additional conditions and the financing committed pursuant to the Committed Financing or (y) otherwise expandCommitment Letters, amend, modify or waive any of the conditions to the Committed Financing or (iii) otherwise expand, amend, modify or waive any provision of the Debt Commitment Letter in a manner that, in the case of subclauses (ii)(y) or (iii“Financing”), would reasonably be expected to (A) prevent, materially impair or materially delay the funding of the Committed Financing (or satisfaction of the conditions to the Committed Financing) . Parent will have on the Closing Date or (B) materially adversely affect sufficient cash on hand to consummate the ability Transactions and perform its obligations hereunder. The obligations to fund the commitments under the Commitment Letters are not subject to any condition, other than the conditions expressly set forth in the Commitment Letters. As of the date of this Agreement, the Commitment Letters are in full force and effect and constitute the valid and binding obligation of Parent and, to the knowledge of Parent, each other Person party thereto. None of the Commitment Letters has been amended or any modified (other than amendments or modifications, copies of its Subsidiaries which have been promptly delivered to pay the Required Amounts at Closing; provided that notwithstanding the foregoingCompany, Parent may modify, supplement to add or amend the Debt Commitment Letter to (1) add replace lenders, lead arrangers, bookrunners, syndication agents or similar entities that entities, so long as such amendments or modifications would not reasonably be expected to prevent, materially delay or impair the Closing or impair the availability of the Financing), no such amendment or modification is contemplated or the subject of current discussions, and the respective commitments contained in the Commitment Letters have not executed been withdrawn or rescinded in any respect. Notwithstanding anything in this Section 5.5 or elsewhere in this Agreement to the Debt Commitment Letter as of contrary, Parent affirms, represents and warrants that under the date terms of this Agreement and its obligations hereunder are not in any way contingent or otherwise subject to (2a) implement or exercise any “market flex” provisions contained in the Debt Commitment Letter. In the event that new commitment letters or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification consummation of the Debt Commitment Letter permitted pursuant to this Section 5.22 such new commitment letters Financing or fee letters shall be deemed to be the “Debt Commitment Letter” for all purposes of this Agreement and references to “Committed Financing” herein shall include and mean the any other financing contemplated by the Debt Commitment Letter as so amended, replaced, supplemented arrangements or otherwise modified, as applicable. Parent shall promptly deliver to the Partnership copies obtaining of any terminationfinancing by Parent or any other Person, amendment, modification, waiver or replacement (b) the availability of the Debt Commitment Letter. Financing any other financing to Parent or any other Person or (c) If funds in the funding of the amounts set forth in the Debt Commitment Letter, or any portion thereof, become unavailable (other than in accordance with the terms of the Debt Commitment Letter), Parent shall, and shall cause its Subsidiaries to, as promptly as practicable following the occurrence of such event (i) notify the Partnership in writing thereof and (ii) use reasonable best efforts contemplated to obtain substitute financing, including, as applicable, a commitment to provide such substitute financing (on terms that are not materially less favorable to Parent, taken as a whole, than the terms as set forth in the Debt Commitment Letter, taking into account any “market flex” provisions thereof, and which does not include any conditions be funded pursuant to the consummation of such substitute financing that are more onerous than the conditions set forth in the Committed Financing) sufficient, together with cash on hand and other sources of funds of Parent on the Closing Date, to enable Parent and its Subsidiaries to pay the Required Amount at Closing (the “Substitute Financing”) and, promptly after execution thereof, deliver to the Partnership true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form removing the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Committed Financing) or related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “Committed Financing” and any commitment letter for such Substitute Financing shall be deemed to be the “Debt Commitment Letter” for all purposes of this AgreementLetters. (d) Notwithstanding the foregoing, compliance by Parent and its Subsidiaries with this Section 5.22 shall not limit or modify the Partnership’s right to seek specific performance to cause Parent to consummate the Merger, whether or not the Debt Financing is available.

Committed Financing. (a) Parent shall, Buyer and Merger Sub shall cause its Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all actions, actions and to do, or cause to be done, as promptly as possible (taking into account the expected timing of the Marketing Period), all things reasonably necessary, proper or advisable necessary to consummate arrange and obtain the Committed Financing or on terms and conditions no less favorable to Buyer and Merger Sub than the terms and conditions described in the Debt Commitment Letter and the Debt Fee Letter (including any Substitute Financing in an amount equal to the Required Amountrelated flex terms), including, including using reasonable best efforts to (i) (A) maintain in effect the Debt Commitment Letter (subject to the Buyer’s and Merger Sub’s right to amend, modify, waive or replace the Debt Commitment Letter in accordance herewith) and using reasonable best efforts to, as promptly as possible (Btaking into account the expected timing of the Marketing Period), (a) negotiatesatisfy (or obtain a waiver of) on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Buyer and Merger Sub obtaining the Committed Financing set forth therein and that are within Buyer’s and/or Merger Sub’s control, (b) negotiate and enter into and deliver definitive agreements with respect thereto on terms no less favorable to Buyer and Merger Sub than the terms and conditions contemplated by the Debt Commitment Letter (including any related flex terms), (c) prepare the necessary marketing materials with respect to the Committed Financing reflecting the terms contained in the Debt Commitment Letter (or with other terms agreed by Parent and the Financing Sources, subject to the restrictions on amendments of the Debt Commitment Letter set forth below), so that such any such agreements (other than customary post-closing agreements/deliverables) are in effect no later than the Closing and (iid) satisfy on a timely basis all commence the conditions to the Committed Financing and the definitive agreements related thereto that are in Parent’s (or its Subsidiaries’) control. Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts under syndication and/or marketing activities contemplated by the Debt Commitment Letter. (b) Following the reasonable request therefor, Parent shall keep the Partnership reasonably informed on a timely basis of the status of Parent’s and its Subsidiaries’ efforts to obtain the Committed Financing, including providing copies of any amendment, modification or replacement of the Debt Commitment Letter (provided, that any fee letter may be redacted to remove the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Committed Financing) and . Buyer shall give the Partnership Company prompt written notice (i) of (x) any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in breach or default) by any party to the Debt Commitment Letter or the definitive documentation related thereto other Debt Document (as defined below) of which Parent has become Buyer or Merger Sub becomes aware, (ii) if and when Buyer or Merger Sub becomes aware and (y) that any condition precedent portion of the Committed Financing that Parent has any reason to believe will not be satisfied at the Closing Date; provided that neither Parent nor any of its affiliates shall be under any obligation to disclose any information that is subject to attorney-client or similar privilege to the extent such privilege is asserted in good faith or otherwise would violate or contravene any law or any obligation of confidentiality. Parent may amend, modify, replace, terminate, assign or agree to any waiver under the Debt Commitment Letter without the prior written approval of the Partnership; provided that Parent shall not, without the Partnership’s prior written consent, permit any such amendment, replacement, modification, assignment, termination or waiver to be made to, or consent to any waiver of, any provision of or remedy under the Debt Commitment Letter which would (i) reduce the aggregate cash amounts of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount) unless the aggregate amount of the Committed Financing following such reduction, together with cash on hand and other sources of funds of Parent on the Closing Date, would be equal to, or in excess of, the Required Amount, (ii) (x)impose new or additional conditions to the Committed Financing or (y) otherwise expand, amend, modify or waive any of the conditions to the Committed Financing or (iii) otherwise expand, amend, modify or waive any provision of the Debt Commitment Letter in a manner that, in the case of subclauses (ii)(y) or (iii), would reasonably be expected to (A) prevent, materially impair or materially delay the funding of the Committed Financing (or satisfaction of the conditions to the Committed Financing) on the Closing Date or (B) materially adversely affect the ability of Parent or any of its Subsidiaries to pay the Required Amounts at Closing; provided that notwithstanding the foregoing, Parent may modify, supplement or amend the Debt Commitment Letter to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement and (2) implement or exercise any “market flex” provisions contained in the Debt Commitment Letter. In the event that new commitment letters or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Debt Commitment Letter permitted pursuant to this Section 5.22 such new commitment letters or fee letters shall be deemed to be the “Debt Commitment Letter” for all purposes of this Agreement and references to “Committed Financing” herein shall include and mean the financing contemplated by the Debt Commitment Letter as so amended(including any related flex terms) will not be available to consummate the Merger, replaced(iii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential material breach, supplemented default, termination or otherwise modified, as applicable. Parent shall promptly deliver repudiation by any party to the Partnership copies Debt Commitment Letter or other Debt Document or (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Committed Financing or Debt Documents), (iv) if for any reason Buyer or Merger Sub believes in good faith it will not be able to obtain any portion of the Committed Financing on the terms, in the manner and from the sources contemplated by the Debt Commitment Letter (including any related flex terms) or the definitive agreements with respect thereto (such definitive agreements related to the Committed Financing, collectively, with the Debt Commitment Letter, the “Debt Documents”) and (v) of any termination, amendment, modification, waiver or replacement termination of the Debt Commitment Letter. (c) . If funds any portion of the Committed Financing becomes unavailable on the terms and conditions contemplated in the amounts Debt Commitment Letter (including any related flex terms), Buyer and Merger Sub shall, without limiting the obligations of Buyer and Merger Sub set forth in the Debt Commitment Letterimmediately following sentence, or use reasonable best efforts to arrange to obtain alternative financing, including from alternative sources, on terms (including any portion thereof, become unavailable (other related flex terms) no less favorable to Buyer and Merger Sub than in accordance with the terms of Committed Financing contemplated by the Debt Commitment Letter), Parent shall, and shall cause its Subsidiaries to, Letter (“Alternative Financing”) as promptly as practicable following the occurrence of such event event; provided that Buyer and Merger Sub shall have no obligation to seek Alternative Financing if the Committed Financing or any portion thereof becomes unavailable due to the failure of the conditions to Closing set forth in Sections 9.2(a) and 9.2(b) to be satisfied. The provisions of this Section 7.4 and Section 13.14 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.4, this Section 7.4 and Section 13.14, all references to the Committed Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing and all references to the Committed Financing Sources shall include the persons providing or arranging the Alternative Financing. Buyer and Merger Sub shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto, including the Debt Documents and (2) not permit, without the prior written consent of the Company, any replacement, amendment or modification to be made to, or any waiver of any provision or remedy under, any Debt Document or the Fee Letter if such replacement, amendment, modification or waiver (i) notify would reduce the Partnership in writing thereof and aggregate amount of proceeds from the Committed Financing available to fund the amounts required to be paid by Buyer under this Agreement below the amount required to consummate the transactions contemplated by this Agreement, (ii) use reasonable best efforts would amend or add new or additional conditions precedent to obtain substitute financingthe Committed Financing in a manner that would reasonably be expected to materially delay or prevent the Closing or make the funding of the Committed Financing less likely to occur, includingor (iii) would reasonably be expected to materially delay or prevent the Closing or make the funding of the Committed Financing less likely to occur. Notwithstanding anything to the contrary in this Section 7.4 or Section 5.6, as applicableBuyer may, a commitment upon written notice to provide such substitute financing (on terms that the Company and without the Company’s consent, terminate the Debt Commitment Letter upon consummation of one or more debt or equity financings, the aggregate net cash proceeds of which are not materially no less favorable to Parent, taken as a whole, than the terms as contemplated net cash proceeds of the Committed Financing set forth in the Debt Commitment LetterLetter and, taking into account upon any “market flex” provisions thereofsuch termination, (a) each of (i) the Company’s obligations under Section 6.4 as to the Committed Financing, (ii) any representation or warranty by Buyer with respect to the Debt Commitment Letter and (iii) this Section 7.4 shall be of no further force or effect, and which does not include any conditions (b) the Marketing Period shall be deemed for all purposes hereunder to have concluded and no provision hereof related to the consummation Marketing Period shall be of such substitute financing any further force or effect. Buyer and Merger Sub acknowledge and agree that are more onerous than the obtaining of the Committed Financing, or any Alternative Financing, is not a condition to Closing and reaffirm their obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Committed Financing, any Alternative Financing or any other financing, subject to fulfillment or waiver of the conditions set forth in the Committed Financing) sufficient, together with cash on hand and other sources of funds of Parent on the Closing Date, to enable Parent and its Subsidiaries to pay the Required Amount at Closing (the “Substitute Financing”) and, promptly after execution thereof, deliver to the Partnership true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form removing the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Committed Financing) or related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “Committed Financing” and any commitment letter for such Substitute Financing shall be deemed to be the “Debt Commitment Letter” for all purposes of this AgreementArticle IX. (d) Notwithstanding the foregoing, compliance by Parent and its Subsidiaries with this Section 5.22 shall not limit or modify the Partnership’s right to seek specific performance to cause Parent to consummate the Merger, whether or not the Debt Financing is available.