Debt Financing Commitments. (a) Subject to the terms and conditions of this Agreement, Purchaser acknowledges that it shall use its commercially reasonable efforts to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters (or terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser), including by using commercially reasonable efforts to (i) maintain in effect each Debt Commitment Letter and negotiating a definitive agreement (collectively, the “Debt Financing Agreements”) with respect to each Debt Commitment Letter on the terms and conditions set forth in such Debt Commitment Letter (or on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser than the terms and conditions in such Debt Commitment Letter), (ii) comply with all covenants and agreements of Purchaser set forth in each Debt Commitment Letter and Debt Financing Agreement and (iii) consummate the Debt Financing at or prior to the Closing. In the event that all conditions in a Debt Commitment Letter (other than the availability of funding of any of the Equity Financing), or upon funding will be satisfied, Purchaser shall use its commercially reasonable efforts to cause the lender party to such Debt Commitment Letter to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under such Debt Commitment Letter. Purchaser will furnish correct and complete copies of any Debt Financing Agreement to Casella promptly upon the execution thereof; provided, however, that Purchaser shall not have any obligation under this Section 6.21 after the End Date (it being understood that on such date Purchaser may terminate any actions it has taken pursuant to this Section 6.21). (b) Purchaser shall keep Casella informed with respect to all material activity concerning the Debt Financing and shall give Casella prompt notice of any material adverse change with respect to the Debt Financing. Without limiting the foregoing, Purchaser agrees to notify Casella promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) a Debt Commitment Letter expires or is terminated for any reason (or if any person attempts or purports to terminate a Debt Commitment Letter, whether or not such attempted or purported termination is valid), (ii) the lender refuses to provide, expresses an intent to refuse to provide or expresses any concern or reservation regarding its obligation or ability to provide all or any portion of the Debt Financing contemplated by a Debt Commitment Letter on the conditions set forth therein or (iii) for any reason Purchaser no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing on substantially the terms described in the Debt Commitment Letters. Without the prior written consent of Casella (which consent shall not be unreasonably withheld, conditioned or delayed), Purchaser shall not, nor shall it permit any of its controlled Affiliates to, take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without the prior written consent of Casella, Purchaser shall not amend or alter, or agree to amend or alter, a Debt Commitment Letter in any manner that would impair, delay or prevent the transactions contemplated by this Agreement. (c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in a Debt Commitment Letter or a Debt Financing Agreement, until the End Date, Purchaser shall use its commercially reasonable efforts to arrange to promptly obtain such Debt Financing from alternative sources on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser and in an amount sufficient, when added to the portion of the Financing that is otherwise available, together with any cash and cash equivalents held by Purchaser as of the Closing, to pay in cash all amounts required to be paid by it in connection with the transactions contemplated by this Agreement, including the Initial Purchase Price or Final Purchase Price, as applicable, and all payments, fees and expenses of Purchaser related to or arising out of the transactions contemplated by this Agreement (an “Alternative Debt Financing”) and to obtain one or more new financing commitment letters (each, an “Alternative Debt Commitment Letter”) and one or more new definitive agreements (each, an “Alternative Debt Financing Agreement”) providing therefor. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Debt Financing, the term “Debt Commitment Letters” as used in this Agreement shall be deemed to include any Alternative Debt Commitment Letter and the term “Debt Financing Agreement” as used in this Agreement shall be deemed to include any Alternative Debt Financing Agreement. Purchaser will furnish correct and complete copies of any Alternative Debt Commitment Letter or Alternative Debt Financing Agreement to Casella promptly upon its execution. (d) Casella agrees to provide Purchaser with such cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Purchaser and to use its commercially reasonable efforts to cause appropriate officers and employees of Seller, the Companies and their respective Subsidiaries (i) to be available on a customary basis to meet with prospective lenders, (ii) to assist with the preparation of disclosure documents, offering documents, information memoranda, projections and similar documents in connection therewith, (iii) to furnish Purchaser and Purchaser’s financing sources with financial statements and financial and other pertinent information regarding the Companies and their Subsidiaries, as may be reasonably requested by Purchaser, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Purchaser in connection with the financing for the transactions contemplated hereby, in each case which will become effective only on or after the Closing, (v) to take such reasonable actions as may be required to facilitate the pledge of collateral to secure such financing (including cooperation in connection with the pay-off of existing Indebtedness and the release of Liens related thereto), (vi) to obtain all waivers, consents and approvals from other parties to Contracts and Liens to which the Companies or any of their respective Subsidiaries is a party or by which any of them, their assets or properties or the Purchased Assets are bound or subject, and (vii) to take all other actions necessary to permit the consummation of the financing contemplated by Commitment Letters. Notwithstanding the foregoing, neither Casella nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Debt Financing. Purchaser shall, promptly upon request by Casella, reimburse Casella for all reasonable out-of-pocket costs incurred by Casella or any of its subsidiaries in connection with such cooperation. All non-public or otherwise confidential information regarding Casella or its Subsidiaries obtained by Purchaser or its representatives or financing sources pursuant to this Section 6.21(d) shall be kept confidential in accordance with the Confidentiality Agreement. (e) Notwithstanding anything to the contrary contained in this Agreement nothing in this Section 6.21 shall require, and in no event shall commercially reasonable efforts of Purchaser be deemed or construed to require, Purchaser to (i) incur the Debt Financing on terms materially less favorable, in the aggregate, to Purchaser than those contained in the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Casella Waste Systems Inc)
Debt Financing Commitments. (a) Subject to the terms and conditions of this Agreement, Purchaser acknowledges that it Buyer shall use its commercially reasonable best efforts to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters (or terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to PurchaserBuyer than the terms and conditions in such Debt Commitment Letters), including by using commercially reasonable efforts to (i) using its reasonable best efforts to maintain in effect each Debt Commitment Letter and negotiating a negotiate definitive agreement agreements (collectively, the “Debt Financing Agreements”) with respect to each Debt Commitment Letter on the terms and conditions set forth in such Debt Commitment Letter (or on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser Buyer than the terms and conditions in such Debt Commitment Letter), (ii) comply assuming the accuracy of all of the representations and warranties of PKI hereunder, ensuring the accuracy of all representations and warranties of Buyer set forth in each Debt Commitment Letter and Debt Financing Agreement, (iii) (subject to compliance by PKI and the other Sellers with their covenants and agreements hereunder (including Sections 4.5(a) and (b) and Section 4.7(d))) complying with all covenants and agreements of Purchaser Buyer set forth in each Debt Commitment Letter and Debt Financing Agreement, (iv) satisfying on a timely basis all conditions applicable to Buyer set forth in each Debt Commitment Letter and Debt Financing Agreement that are within its control and (iiiv) consummate consummating the Debt Financing at or prior to the ClosingClosing (and in any event prior to the Outside Date). In the event that all conditions in a the Debt Commitment Letter Letters (other than the availability of funding of any of the Equity Financing)) and the other conditions to Buyer’s obligations under this Agreement have been satisfied, or upon funding will be satisfied, Purchaser Buyer shall use its commercially reasonable best efforts to cause the lender party to such each Debt Commitment Letter to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under such Debt Commitment Letter. Purchaser Buyer will furnish correct and complete copies of any Debt Financing Agreement to Casella PKI promptly upon the execution thereof; provided, however, that Purchaser shall not have any obligation under this Section 6.21 after the End Date (it being understood that on such date Purchaser may terminate any actions it has taken pursuant to this Section 6.21)its execution.
(b) Purchaser Buyer shall keep Casella PKI reasonably informed with respect concerning material developments relating to all material activity concerning the Debt Financing and shall give Casella PKI prompt notice of any material adverse change with respect to the Debt Financing. Without limiting the foregoing, Purchaser Buyer agrees to notify Casella PKI promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) a Debt Commitment Letter expires or is terminated for any reason (or if any person attempts or purports in writing to terminate a Debt Commitment Letter, whether or not such attempted or purported termination is valid), (ii) the lender refuses to provide, provide or expresses an intent to refuse to provide or expresses any concern or reservation regarding its obligation or ability to provide all or any portion of the Debt Financing contemplated by a Debt Commitment Letter to which it is a party on the conditions terms set forth therein or (iii) for any reason Purchaser Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing on substantially the terms described in the Debt Commitment Letters. Without the prior written consent of Casella (which consent shall not be unreasonably withheldPKI, conditioned or delayed), Purchaser Buyer shall not, nor shall it permit any of its controlled Affiliates to, take any action or to enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract disposition or debt or equity financing, financing that could would reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without the prior written consent of CasellaPKI, Purchaser Buyer shall not amend or alter, or agree to amend or alter, a Debt Commitment Letter in any manner that would reasonably be expected to impair, delay or prevent the transactions contemplated by this AgreementClosing or make the funding of the Debt Financing less likely to occur.
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in a Debt Commitment Letter or a Debt Financing Agreement, until the End Date, Purchaser Buyer shall use its commercially reasonable best efforts to arrange to promptly obtain such Debt Financing from alternative sources on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser Buyer than the terms and conditions in such Debt Commitment Letters and in an amount sufficient, when added to the portion of the Financing that is otherwise available, together with any cash and cash equivalents held by Purchaser as of the Closing, to pay in cash all amounts required to be paid by it in connection with the transactions contemplated by this Agreement, including the Initial Purchase Price or Final Purchase Price, as applicable, and all payments, fees and expenses of Purchaser Buyer related to or arising out of the transactions contemplated by this Agreement (an “Alternative Debt Financing”) and to obtain one or more new financing commitment letters (each, an “Alternative Debt Commitment Letter”) and one or more new definitive agreements (each, an “Alternative Debt Financing Agreement”) providing therefor. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Debt Financing, the term “Debt Commitment Letters” as used in this Agreement shall be deemed to include any Alternative Debt Commitment Letter and the term “Debt Financing Agreement” as used in this Agreement shall be deemed to include any Alternative Debt Financing Agreement. Purchaser Buyer will furnish correct and complete copies of any Alternative Debt Commitment Letter or Alternative Debt Financing Agreement to Casella PKI promptly upon its execution.
(d) Casella agrees PKI shall, and shall cause the Asset Sellers and the Business Subsidiaries to, make commercially reasonable efforts to provide Purchaser Buyer with such cooperation in connection with the arrangement of the Debt Financing (including the syndication thereof (which syndication, for the avoidance of doubt, shall not be a prerequisite to funding of the Debt Financing)) as may be reasonably requested by Purchaser and to use its commercially reasonable efforts to cause appropriate officers and employees of SellerBuyer, the Companies and their respective Subsidiaries provided that (i) to be available on a customary basis to meet such requested cooperation does not unreasonably interfere with prospective lenders, the ongoing operations of PKI and its Subsidiaries and (ii) to assist with the preparation of disclosure documents, offering documents, information memoranda, projections and similar documents in connection therewith, (iii) to furnish Purchaser and Purchaser’s financing sources with financial statements and financial and other pertinent information regarding the Companies and their Subsidiaries, as may be reasonably requested by Purchaser, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Purchaser in connection with the financing for the transactions contemplated hereby, in each case which will become effective only on or after the Closing, (v) to take such reasonable actions as may be required to facilitate the pledge of collateral to secure such financing (including cooperation in connection with the pay-off of existing Indebtedness and the release of Liens related thereto), (vi) to obtain all waivers, consents and approvals from other parties to Contracts and Liens to which the Companies or any of their respective Subsidiaries is a party or by which any of them, their assets or properties or the Purchased Assets are bound or subject, and (vii) to take all other actions necessary to permit the consummation of the financing contemplated by Commitment Letters. Notwithstanding the foregoing, neither Casella PKI nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability (and, for avoidance of doubt, excluding any allocable overhead costs) in connection with the Debt Financing. Purchaser Buyer shall, promptly upon request by CasellaPKI, reimburse Casella PKI for all reasonable out-of-pocket costs incurred by Casella PKI or any of its subsidiaries in connection with such cooperation. Such cooperation will include (A) assistance in Buyer’s preparation of any bank books, rating agency presentation materials or other similar offering materials in connection with the Debt Financing, (B) reasonably promptly responding to any diligence inquiries of the banks engaged for, or the lenders in, such Debt Financing, (C) providing Buyer with reasonable assistance in Buyer’s efforts to obtain subordination and non-disturbance agreements, landlord waivers, collateral access agreements, account control agreements, consents, and other customary agreements from the Business’ landlords, depositary banks or other third parties as may be requested by the sources of the Debt Financing, and (D) making appropriate officers and employees of the Business available, at such times and in such manner as to not unreasonably interfere with the normal operation of the Business, for participation in meetings with, or presentations to, prospective participants in such Debt Financing or the prospective rating agencies for such Debt Financing. All non-public or otherwise confidential information regarding Casella PKI or its Subsidiaries subsidiaries obtained by Purchaser Buyer or its representatives or financing sources pursuant to this Section 6.21(d4.7(d) shall be kept confidential in accordance with the Confidentiality Agreement.
. Buyer shall indemnify and hold harmless PKI and its representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the arrangement of the Financing and any information utilized in connection therewith (e) Notwithstanding anything other than historical financial statements referenced in Section 2.6 and other historical information reasonably requested by Buyer and specifically approved in writing by PKI for use therein (such approval not to the contrary contained in this Agreement nothing in this Section 6.21 shall require, and in no event shall commercially reasonable efforts of Purchaser be deemed unreasonably withheld or construed to require, Purchaser to (i) incur the Debt Financing on terms materially less favorable, in the aggregate, to Purchaser than those contained in the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwisedelayed)).
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Perkinelmer Inc)
Debt Financing Commitments. (a) Subject to the terms and conditions of this Agreement, Purchaser acknowledges that it shall use its commercially reasonable efforts to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters (or terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser), including by using commercially reasonable efforts to (i) maintain in effect each Debt Commitment Letter and negotiating a definitive agreement (collectively, the “Debt Financing Agreements”) with respect to each Debt Commitment Letter on the terms and conditions set forth in such Debt Commitment Letter (or on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser than the terms and conditions in such Debt Commitment Letter), (ii) comply with all covenants and agreements of Purchaser set forth in each Debt Commitment Letter and Debt Financing Agreement and (iii) consummate the Debt Financing at or prior to the Closing. In the event that all conditions in a Debt Commitment Letter (other than the availability of funding of any of the Equity Financing), or upon funding will be satisfied, Purchaser shall use its commercially reasonable efforts to cause the lender party to such Debt Commitment Letter to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under such Debt Commitment Letter. Purchaser will furnish correct and complete copies of any Debt Financing Agreement to Casella promptly upon the execution thereof; provided, however, that Purchaser shall not have any obligation under this Section 6.21 after the End Date (it being understood that on such date Purchaser may terminate any actions it has taken pursuant to this Section 6.21).
(b) Purchaser shall keep Casella informed with respect to all material activity concerning the Debt Financing and shall give Casella prompt notice of any material adverse change with respect to the Debt Financing. Without limiting the foregoing, Purchaser agrees to notify Casella promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) a Debt Commitment Letter expires or is terminated for any reason (or if any person attempts or purports to terminate a Debt Commitment Letter, whether or not such attempted or purported termination is valid), (ii) the lender refuses to provide, expresses an intent to refuse to provide or expresses any concern or reservation regarding its obligation or ability to provide all or any portion of the Debt Financing contemplated by a Debt Commitment Letter on the conditions set forth therein or (iii) for any reason Purchaser no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing on substantially the terms described in the Debt Commitment Letters. Without the prior written consent of Casella (which consent shall not be unreasonably withheld, conditioned or delayed), Purchaser shall not, nor shall it permit any of its controlled Affiliates to, take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without the prior written consent of Casella, Purchaser shall not amend or alter, or agree to amend or alter, a Debt Commitment Letter in any manner that would impair, delay or prevent the transactions contemplated by this Agreement.
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in a Debt Commitment Letter or a Debt Financing Agreement, until the End Date, Purchaser shall use its commercially reasonable efforts to arrange to promptly obtain such Debt Financing from alternative sources on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser and in an amount sufficient, when added to the portion of the Financing that is otherwise available, together with any cash and cash equivalents held by Purchaser as of the Closing, to pay in cash all amounts required to be paid by it in connection with the transactions contemplated by this Agreement, including the Initial Purchase Price or Final Purchase Price, as applicable, and all payments, fees and expenses of Purchaser related to or arising out of the transactions contemplated by this Agreement (an “Alternative Debt Financing”) and to obtain one or more new financing commitment letters (each, an “Alternative Debt Commitment Letter”) and one or more new definitive agreements (each, an “Alternative Debt Financing Agreement”) providing therefor. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Debt Financing, the term “Debt Commitment Letters” as used in this Agreement shall be deemed to include any Alternative Debt Commitment Letter and the term “Debt Financing Agreement” as used in this Agreement shall be deemed to include any Alternative Debt Financing Agreement. Purchaser will furnish correct and complete copies of any Alternative Debt Commitment Letter or Alternative Debt Financing Agreement to Casella promptly upon its execution.
(d) Casella agrees to provide Purchaser with such cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Purchaser and to use its commercially reasonable efforts to cause appropriate officers and employees of Seller, the Companies and their respective Subsidiaries (i) to be available on a customary basis to meet with prospective lenders, (ii) to assist with the preparation of disclosure documents, offering documents, information memoranda, projections and similar documents in connection therewith, (iii) to furnish Purchaser and Purchaser’s financing sources with financial statements and financial and other pertinent information regarding the Companies and their Subsidiaries, as may be reasonably requested by Purchaser, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Purchaser in connection with the financing for the transactions contemplated hereby, in each case which will become effective only on or after the Closing, (v) to take such reasonable actions as may be required to facilitate the pledge of collateral to secure such financing (including cooperation in connection with the pay-off of existing Indebtedness and the release of Liens related thereto), (vi) to obtain all waivers, consents and approvals from other parties to Contracts and Liens to which the Companies or any of their respective Subsidiaries is a party or by which any of them, their assets or properties or the Purchased Assets are bound or subject, and (vii) to take all other actions necessary to permit the consummation of the financing contemplated by Commitment Letters. Notwithstanding the foregoing, neither Casella nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Debt Financing. Purchaser shall, promptly upon request by Casella, reimburse Casella for all reasonable out-of-pocket costs incurred by Casella or any of its subsidiaries in connection with such cooperation. All non-public or otherwise confidential information regarding Casella or its Subsidiaries obtained by Purchaser or its representatives or financing sources pursuant to this Section 6.21(d) shall be kept confidential in accordance with the Confidentiality Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement nothing in this Section 6.21 shall require, and in no event shall commercially reasonable efforts of Purchaser be deemed or construed to require, Purchaser to (i) incur the Debt Financing on terms materially less favorable, in the aggregate, to Purchaser than those contained in the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise).
Appears in 1 contract
Debt Financing Commitments. (a) Subject to the terms Parent and conditions Merger Sub shall, and shall cause each of this Agreementits Affiliates to, Purchaser acknowledges that it 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 obtain and consummate the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters no later than the Closing Date, and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under the Debt Commitment Letters, if such amendment, modification or waiver would:
(i) reduce (or termscould have the effect of reducing) the aggregate committed amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount of the Debt Financing) unless the Equity Financing is increased by a corresponding amount;
(ii) expand on or impose new or additional conditions precedent, or otherwise amend, modify or expand any conditions precedent, to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) prevent, delay or impair the Closing, (B) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur, or (C) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letters, the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby; or
(iii) otherwise reasonably be expected to make it less likely that the Debt Financing would be funded or would otherwise prevent, delay or impair the transactions contemplated by this Agreement or otherwise adversely affect (including with respect to timing, taking into account the conditionality thereofexpected timing of the Marketing Period) the ability of Parent to consummate the transactions contemplated herein. Notwithstanding the foregoing, Parent and Merger Sub may (but shall not materially less favorable be obligated to) amend the Debt Commitment Letters or Debt Financing Documents to add commercial banks, investment banks or other institutional investors as lenders, lead arrangers, bookrunners, syndication agents or similar entities with commitments thereunder that have not executed the Debt Commitment Letters as of the date hereof, if the addition of such additional parties, individually or in the aggregate aggregate, would not prevent, delay or impair the availability of the Debt Financing or the consummation of the transactions contemplated by this Agreement. The Company acknowledges that Parent and Merger Sub may enter into additional financing commitment letters with respect to Purchaserthe financing of the transactions contemplated by this Agreement, including commitments to enter into sale-leaseback financings with respect to Real Property (“Sale Leaseback Transactions”), including provided that such commitment letters do not effect an amendment to the Debt Commitment Letters prohibited by using commercially clauses (i) - (iii) above. Nothing herein restricts Parent’s or Merger Sub’s ability to enter into any such commitment letters, or other documentation, with respect to Sale-Leaseback Transactions. Without limiting the foregoing, each of Parent and Merger Sub shall, and shall cause its Affiliates to, use its reasonable best efforts to consummate the Debt Financing no later than the Closing Date, including using its reasonable best efforts to:
(i1) maintain in effect each Debt Commitment Letter Letter;
(2) negotiate and negotiating a definitive agreement (collectively, the “enter into Debt Financing Agreements”) Documents consistent with respect to each Debt Commitment Letter on the terms and conditions set forth contained in such the Debt Commitment Letter or such other terms that would not be prohibited by clauses (or on terms, including i) – (iii) in the immediately preceding paragraph (it being agreed that documentation with respect to any bridge facility shall not be required if the conditionality thereof, not materially less favorable in notes offering contemplated by the aggregate to Purchaser than the terms and conditions in such Debt Commitment LetterLetter is consummated on or prior to the Closing Date), ;
(ii3) comply with all covenants and agreements of Purchaser Parent or Merger Sub set forth in each the Debt Commitment Letter and to the extent a breach thereof would result in a failure of a condition precedent to the Debt Financing Agreement and or otherwise make the funding of the Debt Financing less likely to occur;
(iii4) satisfy on a timely basis all conditions applicable to Parent or Merger Sub set forth in the Debt Commitment Letter (including by consummating the financing contemplated by the Equity Commitment Letter) that are within its control; and
(5) consummate the Debt Financing at or prior to upon satisfaction of the Closingconditions set forth in the Debt Commitment Letter. In the event that all conditions precedent in a Debt Commitment Letter (other than the availability of funding of any of the financing contemplated under the Equity Financing)Commitment Letters) have been satisfied or, or upon funding will be satisfied, Purchaser each of Parent and Merger Sub shall use its commercially reasonable best efforts to cause the lender lenders party to such the Debt Commitment Letter Letters to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under such Debt Commitment LetterLetter (including through litigation pursued in good faith). Purchaser will furnish correct Parent shall promptly deliver to the Company a true and complete copies copy of any amendment, supplement, modification, replacement or waiver of the Commitment Letters or the Debt Financing Agreement to Casella promptly upon the execution thereof; provided, however, that Purchaser shall not have any obligation under this Section 6.21 after the End Date (it being understood that on such date Purchaser may terminate any actions it has taken pursuant to this Section 6.21)Documents.
(b) Purchaser Parent shall keep Casella the Company informed upon reasonable request, in reasonable detail with respect to all material activity concerning the Debt Financing and (including status thereof), shall give Casella the Company prompt notice if it becomes aware of any material adverse change with respect to the availability of Debt FinancingFinancing and shall provide the Company copies of the Debt Financing Documents and such other information and documentation available to them as shall be reasonably requested by the Company for purposes of monitoring the progress of the financing activities. Without limiting the foregoing, Purchaser each of Parent and Merger Sub agrees to notify Casella the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date Date:
(i) a Debt Commitment Letter expires or is terminated for any reason (or if any person Person attempts or purports in writing to terminate a Debt Commitment Letter, whether or not such attempted or purported termination is valid), ;
(ii) the lender refuses Parent or Merger Sub has actual knowledge of any breach or default by any party to provideany Debt Commitment Letter; or
(iii) Parent or Merger Sub receives any written notice or other communication from any Person with respect to any: (A) actual or potential breach, expresses an intent default or termination by any party to refuse to provide or expresses any concern or reservation regarding its obligation or ability to provide all or any portion of the Debt Financing contemplated by a Debt Commitment Letter on the conditions set forth therein or (iiiB) for material dispute or disagreement between or among any reason Purchaser no longer believes in good faith that it will be able parties to obtain all or any portion Debt Commitment Letter regarding satisfaction of a condition precedent to the availability of the Debt Financing on substantially the terms described in the Debt Commitment LettersClosing Date. Without the prior written consent of Casella (which consent shall not be unreasonably withheld, conditioned or delayed), Purchaser shall notNeither Parent nor Merger Sub shall, nor shall it permit any of its controlled Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, transaction that could would reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without Notwithstanding anything to the prior written consent contrary herein, in no event will Parent or Merger Sub be under any obligation to disclose any information that is subject to attorney-client privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure (or as much of Casella, Purchaser shall not amend or alter, or agree to amend or alter, it as possible) in a Debt Commitment Letter in any manner that would impair, delay or prevent the transactions contemplated by this Agreementdoes not result in a loss of attorney-client privilege).
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in a Debt Commitment Letter or a Debt Financing AgreementLetter, until the End Date, Purchaser each of Parent and Merger Sub shall use its commercially reasonable best efforts (i) to arrange to promptly obtain such Debt Financing from alternative sources on termsterms (including conditions, including with respect to the conditionality thereofstructure, covenants and pricing) not materially less favorable in the aggregate beneficial to Purchaser and Parent, in an amount that is sufficient, when added to the portion of the Financing that is otherwise available, together with any cash and cash equivalents held by Purchaser as of the Closing, to pay in cash all amounts required to be paid by it Parent, the Surviving Corporation and Merger Sub in connection with the transactions contemplated by this Agreement, including the Initial Purchase Price or Final Purchase Price, as applicableMerger Consideration, and all payments, fees and expenses of Purchaser related to or arising out of the transactions contemplated by this Agreement and (an “Alternative Debt Financing”ii) and to obtain one or more a new financing commitment letters (each, an “Alternative Debt Commitment Letter”) letter and one or more a new definitive agreements (each, an “Alternative Debt Financing Agreement”) providing thereforagreement with respect thereto. In such event, the term “Debt Financing” as used Notwithstanding anything in this Agreement shall be deemed to include any Alternative Debt Financingthe contrary, each of Parent and Merger Sub expressly acknowledges and agrees that neither the term “Debt Commitment Letters” as used in this Agreement shall be deemed to include any Alternative Debt Commitment Letter and availability nor terms of the term “Debt Financing Agreement” as used in this Agreement shall be deemed to include or the Rollover Investment or any Alternative alternative Debt Financing Agreement. Purchaser will furnish correct are conditions to the obligations of Parent and complete copies of any Alternative Debt Commitment Letter or Alternative Debt Financing Agreement Merger Sub to Casella promptly upon its executionconsummate the Merger.
(d) Casella Prior to Closing, the Company agrees to use its reasonable best efforts to provide Purchaser (and to cause the Company Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to use reasonable best efforts to provide) Parent with such cooperation that is reasonably necessary or customary in connection with the arrangement of Debt Financing (including the financings contemplated by the Debt Financing Commitment Letters and any Sale Leaseback Transaction) as may be reasonably requested by Purchaser and to use its commercially Parent. Such cooperation shall include reasonable best efforts to cause appropriate officers and employees in respect of Seller, the Companies and their respective Subsidiaries following:
(i) participation in, and assistance with, as applicable, the Marketing Efforts related to be available on a customary basis to meet with prospective lenders, the Debt Financing;
(ii) delivery to assist with Parent, Merger Sub and their Financing Sources of the preparation of disclosure documentsFinancing Information, offering documentsthe Financing Deliverables, information memoranda, projections and similar documents in connection therewith, the Sale-Leaseback Information as promptly as reasonably practicable following Parent’s request;
(iii) assistance to furnish Purchaser Parent in the negotiation of the Debt Financing Documents and Purchaser’s financing sources with financial statements Sale-Leaseback Documents, and financial (subject to the provisions below) execution and other pertinent information regarding the Companies and their Subsidiaries, delivery of Sale-Leaseback Documents;
(iv) taking such actions as may be are reasonably requested by Purchaser, Parent or Merger Sub to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing that are within the Company’s control;
(ivv) to execute cause its independent auditors to cooperate with the Debt Financing, including by using reasonable best efforts to provide the Specified Auditor Assistance;
(vi) providing Parent, Merger Sub and deliver the Financing Sources, or their respective representatives access to any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel Real Property at agreed upon times and following reasonable advance notice to Company in order to take all actions reasonably believes it cannot give the opinion otherwise) necessary or other documents as may be reasonably requested by Purchaser advisable in connection with the financing for receipt of commitments with respect to sale-leaseback transactions and the transactions contemplated herebycompletion of Sale-Leaseback Documents;
(vii) providing the Required Bank Information (as defined in the Debt Commitment Letter);
(viii) upon reasonable request, to identify any material non-public information contained in each case which will become effective only on or after the Closing, Marketing Material and comply with Regulation FD to the extent applicable to such material non-public information; and
(vix) deliver such due diligence materials as is reasonably available to take such reasonable actions it and as may be required to facilitate the pledge of collateral to secure such financing (including cooperation is reasonably requested by Parent and customarily delivered in connection with the pay-off Marketing Materials; provided that (A) no agreement executed by the Company shall be effective until the Effective Time and none of existing Indebtedness and the release of Liens related thereto), (vi) to obtain all waivers, consents and approvals from other parties to Contracts and Liens to which the Companies Company or any of their respective Subsidiaries is a party or by which any of them, their assets or properties or the Purchased Assets are bound or subject, and (vii) to take all other actions necessary to permit the consummation of the financing contemplated by Commitment Letters. Notwithstanding the foregoing, neither Casella nor any of its Company Subsidiaries shall be required to pay take any commitment action under any such agreement that is not contingent upon the Closing or other similar fee or incur any other liability that would be effective prior to the Effective Time (provided that the Company will execute customary authorization letters required by the Financing Sources in connection with the Debt Financing) and (B) the foregoing provisions shall not require cooperation to the extent it would (i) interfere unreasonably with the business or operations of the Company or the Company Subsidiaries, (ii) cause any condition to Closing set forth in Sections 7.01 or 7.03 to not be satisfied or otherwise cause any breach of this Agreement (including any representations or warranties thereunder), (ii) result in the Company or the Company Subsidiaries paying any commitment or other fee prior to the Effective Time, (iii) cause the Company or the Company Subsidiaries to incur liability in connection with the Financing prior to the Effective Time, (iv) cause any director, officer or employee of the Company or the Company Subsidiaries to incur any personal liability (including that none of the boards of directors (or equivalent bodies) of the Company and the Company Subsidiaries shall be required to enter into any resolutions or take similar action approving the Financing until the Closing has occurred), (v) result in the material contravention of, or that could reasonably be expected to result in a material violation or breach of, or a default under, any Laws or under any material Contract to which the Company or any Company Subsidiary is a party in effect on the date hereof, (vi) require the Company to provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any Company Subsidiaries or would otherwise be restricted from disclosure in accordance with the proviso in Section 6.02 or (vii) require the Company to prepare separate financial statements for any Company Subsidiary. Purchaser The Company hereby consents to the use of all of its and the Company Subsidiaries’ logos in connection with the Debt Financing, in accordance with customary practice and subject to any reasonable restrictions that the Company may impose; provided that the logos are used solely in a manner that is not intended, or reasonably likely, to harm or disparage the Company and the Company Subsidiaries or the reputation or the goodwill of the Company and the Company Subsidiaries. All non-public or otherwise confidential information regarding the Company obtained by Parent or Merger Sub or any of their respective Representatives pursuant to this Section 5.06(d) shall be kept confidential in accordance with the Confidentiality Agreement; provided that the Company agrees that Parent and Merger Sub may share non-public or otherwise confidential information with the Financing Sources, and that Parent, Merger Sub and such Financing Sources may share such information with potential Financing Sources in connection with the Marketing Efforts relating to the Debt Financing if the recipients of such information agree to customary confidentiality arrangements, including “click through” confidentiality agreements and confidentially provisions contained in customary bank books and offering memoranda provided that the Company has had an opportunity to review such confidentiality agreements and confidentiality provisions and such agreements or provisions provide confidentiality obligations under Regulation FD. Parent shall, promptly upon request by Casellathe Company, reimburse Casella the Company for all reasonable out-of-pocket costs incurred by Casella the Company or any of its subsidiaries the Company Subsidiaries in connection with such cooperationthe cooperation contemplated by this Section 5.06(d) and Section 2.02(j). All non-public Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, its Affiliates and its Representatives from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or otherwise confidential incurred by any of them in connection with the arrangement of the financings contemplated by the Commitment Letters and any information regarding Casella or its Subsidiaries obtained by Purchaser or its representatives or financing sources utilized in connection therewith, and the delivery of the payoff letters pursuant to this Section 6.21(d) shall be kept confidential in accordance with the Confidentiality Agreement.
(e) 2.02(j). Notwithstanding anything to the contrary contained contrary, the condition set forth in this Agreement nothing in Section 7.03(b), as it applies to the Company’s obligations under this Section 6.21 5.06(d), shall require, and in no event shall commercially reasonable efforts of Purchaser be deemed or construed to require, Purchaser to (i) incur the Debt Financing on terms materially less favorable, in the aggregate, to Purchaser than those contained in the Debt Commitment Letter or (ii) pay any fees in excess satisfied unless there has occurred a knowing and willful material breach of those contemplated by the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwiseits obligations under this Section 5.06(d).
Appears in 1 contract
Debt Financing Commitments. (a) Subject to The Buyer and the terms and conditions of this Agreement, Purchaser acknowledges that it Transitory Subsidiary shall use its commercially their respective reasonable best efforts to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters Letter (or termsterms not materially less favorable, in the aggregate, to the Buyer and the Transitory Subsidiary taken as a whole (including with respect to the conditionality thereof)) (provided, that, Buyer and the Transitory Subsidiary may replace or amend the Debt Financing Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not materially less favorable in executed the aggregate Debt Financing Commitment Letters as of the date hereof, or otherwise so long as the terms would not adversely impact the ability of the Buyer and Transitory Subsidiary to Purchasertimely consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby), including by using commercially reasonable best efforts to (i) maintain in effect each the Debt Commitment Letter and negotiating negotiate a definitive agreement (collectively, the “Debt Financing Agreements”) with respect to each the Debt Commitment Letter on the terms and conditions set forth in such the Debt Commitment Letter (or on termsterms not materially less favorable, in the aggregate, to the Buyer and the Transitory Subsidiary, taken as a whole, (including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser ) than the terms and conditions in such the Debt Commitment Letter), (ii) ensure the accuracy of all representations and warranties of the Buyer or the Transitory Subsidiary set forth in the Debt Commitment Letter or Debt Financing Agreement, (iii) comply with all covenants and agreements of Purchaser the Buyer or the Transitory Subsidiary set forth in each the Debt Commitment Letter and or Debt Financing Agreement, (iv) satisfy on a timely basis all conditions applicable to the Buyer or the Transitory Subsidiary set forth in the Debt Commitment Letter or Debt Financing Agreement that are within their control and (iiiv) upon satisfaction of such conditions and the other conditions set forth in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Closing, subject to the fulfillment or waiver of those conditions), to consummate the Debt Financing at or prior to the ClosingClosing (and in any event prior to the Outside Date). In the event that all conditions in a the Debt Commitment Letter (other than the availability of funding of any of the financing contemplated under the Equity Financing)Commitment Letter) have been satisfied or, or upon funding will be satisfied, Purchaser each of the Buyer and the Transitory Subsidiary shall use its commercially reasonable best efforts to cause the lender party to such the Debt Commitment Letter to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under such the Debt Commitment Letter. Purchaser The Buyer will furnish to the Company correct and complete copies of any Debt Financing Agreement or any Alternative Debt Commitment Letter and, in each case, ancillary documents thereto (redacted to Casella promptly upon the execution thereof; providedextent necessary to comply with confidentiality agreements, howeverprovided that such redacted information does not relate to the amounts or conditionality of, that Purchaser shall not have or contain any obligation under this Section 6.21 after conditions precedent to, the End Date (it being understood that on such date Purchaser may terminate any actions it has taken pursuant to this Section 6.21funding of the Debt Financing).
(b) Purchaser The Buyer shall keep Casella the Company reasonably informed with respect to all material activity concerning the Debt Financing and shall give Casella the Company prompt notice of any material adverse change with respect to the Debt Financing. Without limiting the foregoing, Purchaser each of the Buyer and the Transitory Subsidiary agrees to notify Casella the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) a Debt Commitment Letter expires or is terminated for any reason (or if any person attempts or purports to terminate a Debt Commitment Letter, whether or not such attempted or purported termination is valid), (ii) the lender refuses to provide, expresses an intent to refuse to provide or expresses any concern or reservation regarding its obligation or ability to provide all or any portion of the Debt Financing contemplated by a Debt Commitment Letter on the conditions terms set forth therein -25- therein, or (iii) for any reason Purchaser the Buyer or the Transitory Subsidiary no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing on substantially the terms described in the Debt Commitment Letters. Without Neither the prior written consent of Casella (which consent shall not be unreasonably withheld, conditioned or delayed), Purchaser shall notBuyer nor the Transitory Subsidiary shall, nor shall it permit any of its controlled Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without Neither the prior written consent of Casella, Purchaser Buyer nor the Transitory Subsidiary shall not amend or alter, or agree to amend or alter, a Debt Commitment Letter in any manner that would materially impair, delay or prevent the transactions contemplated by this AgreementAgreement without the prior written consent of the Company.
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in a Debt Commitment Letter or a Debt Financing Agreement, until each of the End Date, Purchaser Buyer and the Transitory Subsidiary shall use its commercially reasonable best efforts to arrange to promptly obtain such Debt Financing from alternative sources on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser and in an amount sufficient, when added to the portion of the Financing that is otherwise available, together with any cash and cash equivalents held by Purchaser as of the Closing, to pay in cash all amounts required to be paid by it the Buyer, the Surviving Corporation and the Transitory Subsidiary in connection with the transactions contemplated by this Agreement, including the Initial Purchase Price or Final Purchase PriceMerger Consideration, as applicable, the Option Consideration and all payments, fees and expenses of Purchaser related to or arising out of the transactions contemplated by this Agreement (an “Alternative Debt Financing”) and to obtain one or more a new financing commitment letters letter (each, an the “Alternative Debt Commitment Letter”) and one or more a new definitive agreements agreement with respect thereto (each, an the “Alternative Debt Financing Agreement”) providing thereforthat provides for financing on terms not materially less favorable, in the aggregate, to the Buyer and the Transitory Subsidiary taken as a whole and in an amount that is sufficient, when added to the portion of the Financing that is available together with any cash or cash equivalents held by the Company as of the Effective Time, to pay in cash all amounts required to be paid by the Buyer, the Surviving Corporation and the Transitory Subsidiary in connection with the transactions contemplated by this Agreement, including the Merger Consideration, the Option Consideration and all payments, fees and expenses related to or arising out of the transactions contemplated by this Agreement. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Debt Financing, the term “Debt Commitment LettersLetter” as used in this Agreement shall be deemed to include any Alternative Debt Commitment Letter Letter, and the term “Debt Financing Agreement” as used in this Agreement shall be deemed to include any Alternative Debt Financing Agreement. Purchaser will furnish correct and complete copies of any Alternative Debt Commitment Letter or Alternative Debt Financing Agreement to Casella promptly upon its execution.
(d) Casella The Company agrees to, and shall cause the Company Subsidiaries to, and shall use its commercially reasonable efforts to cause their respective representatives, including legal and accounting advisors to, provide Purchaser the Buyer with such cooperation in connection with the arrangement of the financings contemplated by the Debt Financing Commitment Letters as may be reasonably requested by Purchaser and to use its commercially reasonable efforts to cause appropriate officers and employees of Sellerthe Buyer, the Companies and their respective Subsidiaries including (i) assisting in the preparation for, and participating in, a reasonable number of meetings, presentations, due diligence sessions and similar presentations to be available on a customary basis to meet and with rating agencies and the parties acting as lead arrangers or agents for, and prospective lenderspurchasers and lenders of, the Debt Financing, (ii) to assist assisting with the preparation of disclosure documentsmaterials for rating agency presentations, offering documents, information memorandamemoranda (including the delivery of one or more customary representation letters), projections and similar documents required in connection therewithwith the Financing, (iii) to furnish Purchaser executing and Purchaser’s financing sources with financial statements delivering any pledge and financial and other pertinent information regarding the Companies and their Subsidiaries, as may be reasonably requested by Purchaser, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangementsother definitive financing documents, customary or other certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Purchaser the Buyer and otherwise reasonably facilitating the pledging of collateral (including a certificate of the chief financial officer of the Company or any Subsidiary with respect to solvency matters), using commercially reasonable efforts to obtain consents of accountants for use of their reports in connection any materials relating to the Debt Financing, (iv) furnishing the Buyer and its Financing sources with the financing for financial statements and financial data of the transactions contemplated hereby, Company required by paragraph (ii) under the heading “Conditions to Close” in each case which will become effective only on or after Exhibit A to the ClosingDebt Commitment Letter, (v) using commercially reasonable efforts to take such reasonable actions obtain surveys and title insurance as may be required reasonably requested by the Buyer in order to facilitate the pledge of collateral to secure such financing (including cooperation in connection with the pay-off of existing Indebtedness Debt Financing and the release of Liens related thereto), (vi) to obtain taking all waivers, consents and approvals from other parties to Contracts and Liens to which the Companies or any of their respective Subsidiaries is a party or by which any of them, their assets or properties or the Purchased Assets are bound or subject, and (vii) to take all other corporate actions necessary to permit the consummation of the financing Debt Financing and to permit the proceeds thereof to be made available to the Surviving Corporation, including the entering into of one or more credit agreements or other instruments on terms satisfactory to the Buyer in connection with the Debt Financing immediately prior to, and conditioned upon the occurrence of, the Effective Time to the extent the direct borrowing or debt incurrence by the Company is contemplated by in the Debt Commitment Letters. Notwithstanding ; provided that (i) such requested cooperation does not unreasonably interfere with the foregoingongoing operations of the Company and its Subsidiaries, (ii) neither Casella the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection -26- with the financings contemplated by the Debt FinancingCommitment Letter prior to the Effective Time, (iii) such cooperation shall not require preparation of any pro forma financial information by the Company, and (iv) no participation in any road shows shall be required. Purchaser If the Closing should not occur by the Outside Date, the Buyer shall, promptly upon request by Casellathe Company, reimburse Casella the Company for all reasonable and documented out-of-pocket costs incurred by Casella the Company or any of its subsidiaries Subsidiaries in connection with such cooperation. All non-public or otherwise confidential information regarding Casella or its Subsidiaries the Company obtained by Purchaser the Buyer or its representatives the Transitory Subsidiary or financing sources any of their respective Representatives pursuant to this Section 6.21(d5.4(d) shall be kept confidential in accordance with the Confidentiality Agreement. The Buyer shall indemnify and hold harmless the Company and its Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing (other than to the extent that such losses arise from the gross negligence or willful misconduct of the Company, any of its Subsidiaries or any of their respective Representatives) and any information utilized in connection therewith (other than information provided by the Company or the Company Subsidiaries). The Company hereby consents to the reasonable use of its and the Company Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries and its or their marks.
(e) Notwithstanding anything to The Buyer and the contrary contained in this Agreement nothing in this Section 6.21 shall require, Transitory Subsidiary each acknowledge and in no event shall commercially reasonable efforts agree that the obtaining of Purchaser be deemed or construed to require, Purchaser to (i) incur the Debt Financing on terms materially less favorable, in is not a condition to the aggregate, Closing.
(f) The Company shall deliver to Purchaser than those contained in the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated Buyer a certificate executed by the Debt Commitment Letters Chief Financial Officer of the Company setting forth Adjusted EBITDA (whether to secure waiver as defined in Section 5.4(f) of any conditions contained therein or otherwise)the Company Disclosure Schedule) for the month ended December 31, 2009 and each month thereafter, together with supporting calculations in reasonable detail, by twenty (20) days following the end of each such month.
Appears in 1 contract
Samples: Merger Agreement (Airvana Inc)
Debt Financing Commitments. (a) Subject to The Buyer and the terms Transitory Subsidiary acknowledge that they shall be fully responsible for obtaining the Debt Financing and conditions of this Agreement, Purchaser acknowledges that it each shall use its commercially reasonable best efforts to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under the Debt Commitment Letters, if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) unless the Equity Financing is increased by a corresponding amount, or (ii) impose new or additional conditions precedent, or otherwise amend, modify or expand any conditions precedent, to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) prevent, delay or impair the Closing, (B) make the funding of the Debt Financing (or termssatisfaction of the conditions to obtaining the Debt Financing) less likely to occur, including or (C) adversely impact the ability of the Buyer or the Transitory Subsidiary to enforce its rights against the other parties to the Debt Commitment Letters, the ability of the Buyer or the Transitory Subsidiary to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. Notwithstanding the foregoing, the Buyer and the Transitory Subsidiary may (but shall not be obligated to) (a) replace or amend the Debt Commitment Letters or Debt Financing Documents to add commercial banks, investment banks or other institutional investors as lenders, lead arrangers, bookrunners, syndication agents or Table of Contents similar entities with commitments thereunder that have not executed the Debt Commitment Letters as of the date hereof, if the addition of such additional parties, individually or in the aggregate, would not prevent, delay or impair the availability of the Debt Financing or the consummation of the transactions contemplated by this Agreement and (b) enter into additional financing commitment letters with respect to the conditionality thereoffinancing of the transactions contemplated by this Agreement, including commitments to enter into sale-leaseback financings with respect to Real Property (“Sale Leaseback Transactions”), provided that such commitment letters either (i) do not materially less favorable reduce the aggregate amount of the Debt Financing committed pursuant to the terms of the Debt Commitment Letters, or (ii) if such commitments are reduced, such letters do not contain any new or additional conditions precedent other than those set forth in the aggregate Debt Commitment Letters or that would not adversely affect the ability of the Buyer or the Transitory Subsidiary to Purchaser)consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. Without limiting the foregoing, including by using commercially each of the Buyer and the Transitory Subsidiary shall use its reasonable best efforts to (i1) maintain in effect each Debt Commitment Letter and negotiating a definitive agreement (collectively, the “negotiate Debt Financing Agreements”) with respect to each Debt Commitment Letter on the Documents that contain terms and conditions set forth in such Debt Commitment Letter (or on termsterms not materially less favorable, in the aggregate, to the Buyer and the Transitory Subsidiary, taken as a whole, (including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser ) than the terms and conditions in such Debt Commitment Letter), (ii2) ensure the accuracy of all representations and warranties of the Buyer or the Transitory Subsidiary set forth in a Debt Commitment Letter, (3) comply with all covenants and agreements of Purchaser the Buyer or the Transitory Subsidiary set forth in each a Debt Commitment Letter, (4) satisfy on a timely basis all conditions applicable to the Buyer or the Transitory Subsidiary set forth in a Debt Commitment Letter and Debt Financing Agreement (including by consummating the financing contemplated by the Equity Commitment Letter) that are within their control and (iii5) consummate the Debt Financing at or prior to the ClosingClosing (and in any event on or prior to the Outside Date). In the event that all conditions precedent in a Debt Commitment Letter (other than the availability of funding of any of the financing contemplated under the Equity Financing)Commitment Letters) have been satisfied or, or upon funding will be satisfied, Purchaser each of the Buyer and the Transitory Subsidiary shall use its commercially reasonable best efforts to cause the lender lenders party to such the Debt Commitment Letter Letters to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under such Debt Commitment LetterLetter (including through litigation pursued in good faith). Purchaser To the extent not done on or prior to the date hereof, the Buyer will furnish correct and complete copies of any Debt Commitment Letter or Debt Financing Agreement Document to Casella the Company promptly upon the execution thereof; provided, however, that Purchaser shall not have any obligation under this Section 6.21 after the End Date (it being understood that on such date Purchaser may terminate any actions it has taken pursuant to this Section 6.21)their execution.
(b) Purchaser The Buyer shall keep Casella the Company informed upon request with respect to all material activity concerning the Debt Financing and shall give Casella the Company prompt notice if it becomes aware of any material adverse change with respect to the availability of Debt Financing. Without limiting the foregoing, Purchaser each of the Buyer and the Transitory Subsidiary agrees to notify Casella the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) a Debt Commitment Letter expires or is terminated for any reason (or if any person attempts or purports to terminate a Debt Commitment Letter, whether or not such attempted or purported termination is valid), (ii) the lender Buyer or the Transitory Subsidiary has actual knowledge of any breach or default by any party to any Debt Commitment Letter, (iii) the Buyer or the Transitory Subsidiary receives any written notice or other written communication from any Person with respect to any: (A) actual or potential breach, default, termination or repudiation by any party to any Debt Commitment Letter or (B) material dispute or disagreement between or among any parties to any Debt Commitment Letter; or (iv) a Financing Source refuses in writing to provide, expresses an intent to refuse to provide provide, or expresses any material concern or reservation regarding its obligation or and/or ability to provide provide, all or any portion of the Debt Financing contemplated by a Debt Commitment Letter on the conditions terms set forth therein or (iii) for any reason Purchaser no longer believes in good faith that it will be able to obtain all or any portion of therein. Neither the Debt Financing on substantially Buyer nor the terms described in the Debt Commitment Letters. Without the prior written consent of Casella (which consent shall not be unreasonably withheld, conditioned or delayed), Purchaser shall notTransitory Subsidiary shall, nor shall it permit any of its controlled Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without the prior written consent of Casella, Purchaser shall not amend or alter, or agree to amend or alter, a Debt Commitment Letter in any manner that would impair, delay or prevent the transactions contemplated by this Agreement.
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in a Debt Commitment Letter or a Debt Financing AgreementLetter, until each of the End Date, Purchaser Buyer and the Transitory Subsidiary shall use its commercially reasonable best efforts (i) to arrange to promptly obtain such Debt Financing from alternative sources on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser and in an Table of Contents amount that is sufficient, when added to the portion of the Financing that is otherwise available, available and together with any cash and or cash equivalents held by Purchaser the Company as of the ClosingEffective Time, to pay in cash all amounts required to be paid by it the Buyer, the Surviving Corporation and the Transitory Subsidiary in connection with the transactions contemplated by this Agreement, including the Initial Purchase Price or Final Purchase PriceMerger Consideration, as applicable, the Option Consideration and all payments, fees and expenses of Purchaser related to or arising out of the transactions contemplated by this Agreement and (an “Alternative Debt Financing”ii) and to obtain one or more a new financing commitment letters (each, an “Alternative Debt Commitment Letter”) letter and one or more a new definitive agreements agreement with respect thereto that provides for financing on terms (eachincluding structure, covenants and pricing) not materially less favorable, in the aggregate, to the Buyer and the Transitory Subsidiary taken as a whole and in an “Alternative Debt amount that is sufficient, when added to the portion of the Financing Agreement”) providing therefor. In such eventthat is available together with any cash or cash equivalents held by the Company as of the Effective Time, to pay in cash all amounts required to be paid by the Buyer, the term “Debt Financing” as used Surviving Corporation and the Transitory Subsidiary in connection with the transactions contemplated by this Agreement shall be deemed to include any Alternative Debt FinancingAgreement, including the Merger Consideration, the term “Debt Commitment Letters” as used in Option Consideration and all payments, fees and expenses related to or arising out of the transactions contemplated by this Agreement shall be deemed to include any Alternative Debt Commitment Letter and the term “Debt Financing Agreement” as used in this Agreement shall be deemed to include any Alternative Debt Financing Agreement. Purchaser will furnish correct and complete copies of any Alternative Debt Commitment Letter or Alternative Debt Financing Agreement to Casella promptly upon its execution.
(d) Casella agrees The Company agrees, at the Buyer’s sole cost and expense, to use its reasonable best efforts to provide Purchaser (and to cause its Subsidiaries and its and their respective personnel and advisors to use their reasonable best efforts to provide) the Buyer with such cooperation in connection with the arrangement financing of the Merger (including the financings contemplated by the Debt Financing Commitment Letters and any Sale-Leaseback Transaction) as may be reasonably requested by Purchaser the Buyer and to use its commercially reasonable efforts to cause appropriate officers and employees of Seller, the Companies and their respective Subsidiaries (i) to be available on a as customary basis to meet with prospective lenders, (ii) to assist with the preparation of disclosure documents, offering documents, information memoranda, projections and similar documents in connection therewith, (iii) to furnish Purchaser and Purchaser’s financing sources with financial statements and financial and other pertinent information regarding the Companies and their Subsidiaries, as may be reasonably requested by Purchaser, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Purchaser in connection with the arrangement of financing for similar in all material respects to the transactions contemplated herebyFinancing, in each case which will become effective only on provided that (i) no liability or after the Closing, (v) to take such reasonable actions as may be required to facilitate the pledge of collateral to secure such financing obligation (including cooperation in connection with any liability or obligation to pay any commitment or other similar fee) of the pay-off of existing Indebtedness and the release of Liens related thereto), (vi) to obtain all waivers, consents and approvals from other parties to Contracts and Liens to which the Companies Company or any of their respective its Subsidiaries is a party under any certificate, document or by which any of them, their assets or properties or instrument shall be effective until the Purchased Assets are bound or subject, Effective Time and (vii) to take all other actions necessary to permit the consummation none of the financing contemplated by Commitment Letters. Notwithstanding the foregoing, neither Casella nor Company or any of its Subsidiaries shall be required to pay take any commitment action under any certificate, document or other similar fee instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or incur that would be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) none of the Company or any other liability of its Subsidiaries shall be required to issue any offering or information document and (iv) nothing herein shall require such cooperation with respect to any Sale-Leaseback Transaction to the extent it would interfere unreasonably with the Company’s compliance with its obligation to provide cooperation with respect to the financings contemplated by the Debt Commitment Letters. Subject in all cases to the proviso to the immediately preceding sentence, such cooperation shall include the following: (A) participating in a reasonable and limited number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing; (B) delivery to the Buyer, the Transitory Subsidiary and their Financing Sources of the Financing Information and the Sale-Leaseback Information as promptly as reasonably practicable following the Buyer’s request; (C) participation by senior management of the Company in the negotiation of, and (subject to clause (i) of the preceding sentence) the execution and delivery of Debt Financing Documents and Sale-Leaseback Documents; (D) using its reasonable best efforts to take such actions as are reasonably requested by the Buyer, the Transitory Subsidiary or their Financing Sources to facilitate the satisfaction on a timely basis of all conditions precedent contained in paragraphs 3, 4, 5, 6 and 9 of Exhibit E to the Debt Commitment Letter, including by providing the Buyer, the Transitory Subsidiary or the Financing Sources or their respective representatives timely access to any Real Property in order to take all actions necessary for the completion of the Sale-Leaseback Documents; and (E) using reasonable best efforts to arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all Indebtedness contemplated by the Debt Commitment Letters to be paid off, discharged and terminated on the Closing Date (the “Existing Company Debt”). Purchaser The Company will provide to the Buyer, the Transitory Subsidiary and their Financing Sources such information as may be necessary so that the Financing Information, the Sale-Leaseback Information and Marketing Material are complete and correct in all material respects and do not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading. The Company hereby consents Table of Contents to the use of all of its and its subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries and its or their marks. Notwithstanding anything to the contrary, the condition set forth in Section 7.2(b), as it applies to the Company’s obligations under this Section 5.4(d), shall be deemed satisfied unless there has occurred a knowing and willful material breach of its obligations under this Section 5.4(d). All non-public or otherwise confidential information regarding the Company obtained by the Buyer or the Transitory Subsidiary or any of their respective Representatives pursuant to this Section 5.4(d) shall be kept confidential in accordance with the Confidentiality Agreements; provided that the Company agrees that the Buyer and the Transitory Subsidiary may share non-public or otherwise confidential information with the Financing Sources, and that the Buyer, the Transitory Subsidiary and such Financing Sources may share such information with potential Financing Sources in connection with the marketing of the Debt Financing if the recipients of such information agree to customary confidentiality arrangements. The Buyer shall, promptly upon request by Casellathe Company, reimburse Casella the Company for all reasonable out-of-pocket costs incurred by Casella the Company or any of its subsidiaries Subsidiaries in connection with such cooperation. All non-public or otherwise confidential information regarding Casella or its Subsidiaries obtained the cooperation contemplated by Purchaser or its representatives or financing sources pursuant to this Section 6.21(d) shall be kept confidential 5.4(d). The Buyer and the Transitory Subsidiary shall, on a joint and several basis, indemnify and hold harmless the Company and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them in accordance connection with the Confidentiality Agreementarrangement of the financings contemplated by the Commitment Letters and any information utilized in connection therewith (other than historical information relating to the Company approved by the Company for use therein).
(e) Notwithstanding anything to the contrary contained in For purposes of this Agreement nothing in this Section 6.21 shall require, and in no event shall commercially reasonable efforts of Purchaser be deemed or construed to require, Purchaser to (i) incur the Debt Financing on terms materially less favorable, in the aggregate, to Purchaser than those contained in the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise).Agreement:
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Debt Financing Commitments. (a) Subject to The Buyer and the terms Transitory Subsidiary acknowledge that they shall be fully responsible for obtaining the Debt Financing and conditions of this Agreement, Purchaser acknowledges that it each shall use its commercially reasonable best efforts to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under the Debt Commitment Letters, if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) unless the Equity Financing is increased by a corresponding amount or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) prevent, materially delay or impair the Closing, (B) make the funding of the Debt Financing (or termssatisfaction of the conditions to obtaining the Debt Financing) less likely to occur, including with respect or (C) adversely impact the ability of the Buyer or the Transitory Subsidiary to enforce its rights against the other parties to the conditionality thereofDebt Commitment Letters, the ability of the Buyer or the Transitory Subsidiary to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby; for the avoidance of doubt, the Buyer and the Transitory Subsidiary may replace or amend the Debt Commitment Letters or Debt Financing Documents to add commercial banks, investment banks or other institutional investors as lenders, lead arrangers, bookrunners, syndication agents or similar entities with commitments thereunder and increase the amount of such commitments in an amount equivalent to the purchase price in connection with any acquisition permitted hereby and undertaken in compliance herewith; provided, further, that the Company’s consent to any amendment to the Debt Commitment Letters that reduces the aggregate amount of Debt Financing available under such Debt Commitment Letters shall not materially less favorable be unreasonably withheld if, concurrently therewith, the Company shall enter into additional commitment letters providing for debt financing in the aggregate to Purchaser)amount of such proposed reduction.
(b) Without limiting the foregoing, including by using commercially each of the Buyer and the Transitory Subsidiary shall use its reasonable best efforts to (i1) maintain in effect each Debt Commitment Letter and negotiating a definitive agreement (collectively, the “negotiate Debt Financing Agreements”) with respect to each Debt Commitment Letter on the Documents that contain terms and conditions set forth in such Debt Commitment Letter (or on termsterms not materially less favorable, in the aggregate, to the Buyer and the Transitory Subsidiary, taken as a whole, (including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser ) than the terms and conditions in such Debt Commitment Letter), (ii2) comply with all covenants and agreements of Purchaser the Buyer or the Transitory Subsidiary set forth in each Debt Commitment Letter that are within its control, (3) satisfy on a timely basis all conditions applicable to the Buyer or the Transitory Subsidiary set forth in each Debt Commitment Letter (including by consummating the financing contemplated by the Equity Commitment Letter upon terms and Debt Financing Agreement conditions pursuant thereto) that are within their control and (iii4) in the event that all of the conditions to the Debt Commitment Letter have been satisfied (other than the availability of funding of any of the financing contemplated under the Equity Commitment Letter) consummate the Debt Financing at or prior to the ClosingClosing (and in any event on or prior to the Outside Date). In the event that all conditions precedent in a Debt Commitment Letter (other than the availability of funding of any of the financing contemplated under the Equity Financing)Commitment Letter) have been satisfied or, or upon funding will be satisfied, Purchaser each of the Buyer and the Transitory Subsidiary shall use its commercially reasonable best efforts to cause the lender lenders party to such the Debt Commitment Letter Letters to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under such Debt Commitment Letter. Purchaser To the extent not done on or prior to the date hereof, the Buyer will furnish correct and complete copies of any each Debt Financing Agreement Commitment Letter to Casella the Company promptly upon the execution thereof; provided, however, that Purchaser shall not have any obligation under this Section 6.21 after the End Date (it being understood that on such date Purchaser may terminate any actions it has taken pursuant to this Section 6.21)its execution.
(bc) Purchaser The Buyer shall keep Casella the Company reasonably informed upon request with respect to all material activity concerning the status of its efforts to consummate the Debt Financing and shall give Casella the Company prompt notice of any material adverse change with respect to if it becomes aware that the Debt FinancingFinancing has become unavailable. Without limiting the foregoing, Purchaser each of the Buyer and the Transitory Subsidiary agrees to notify Casella the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) a Debt Commitment Letter expires or is terminated for any reason (or if any person attempts or purports to terminate a Debt Commitment Letter, whether or not such attempted or purported termination is valid), (ii) the lender Buyer or the Transitory Subsidiary has actual knowledge of any breach or default by any party to any Debt Commitment Letter, (iii) the Buyer or the Transitory Subsidiary receives any written notice or other written communication from any person with respect to any breach, default, termination or repudiation by any party to any Debt Commitment Letter or (iv) a Financing Source refuses in writing to provide, expresses an intent in writing to refuse to provide provide, or expresses in writing any material concern or reservation regarding its obligation or and/or ability to provide provide, all or any portion of the Debt Financing contemplated by a Debt Commitment Letter on the conditions terms set forth therein or (iii) for any reason Purchaser no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing on substantially the terms described in the Debt Commitment Letters. Without the prior written consent of Casella (which consent shall not be unreasonably withheld, conditioned or delayed), Purchaser shall not, nor shall it permit any of its controlled Affiliates to, take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without the prior written consent of Casella, Purchaser shall not amend or alter, or agree to amend or alter, a Debt Commitment Letter in any manner that would impair, delay or prevent the transactions contemplated by this Agreementtherein.
(cd) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in a Debt Commitment Letter or a Debt Financing AgreementLetter, until each of the End Date, Purchaser Buyer and the Transitory Subsidiary shall use its commercially reasonable best efforts (i) to arrange to promptly obtain such Debt Financing from alternative sources on terms, including with respect to the conditionality thereof, not materially less favorable in the aggregate to Purchaser and in an amount that is sufficient, when added to the portion of the Financing that is otherwise available, available and together with any cash and or cash equivalents held by Purchaser the Company as of the ClosingEffective Time, to pay in cash all amounts required to be paid by it the Buyer, the Surviving Corporation and the Transitory Subsidiary in connection with the transactions contemplated by this Agreement, including the Initial Purchase Price or Final Purchase PriceMerger Consideration, as applicable, the Option Consideration and all payments, fees and expenses of Purchaser related to or arising out of the transactions contemplated by this Agreement and (an “Alternative Debt Financing”ii) and to obtain one or more a new debt financing commitment letters (each, an “Alternative Debt Commitment Letter”) letter and one or more a new definitive agreements agreement with respect thereto that provides for debt financing on terms (eachincluding structure, covenants and pricing) not less favorable, in the aggregate, to the Buyer and the Transitory Subsidiary taken as a whole and in an “Alternative Debt amount that is sufficient, when added to the portion of the Financing Agreement”) providing therefor. In such eventthat is available together with any cash or cash equivalents held by the Company as of the Effective Time, to pay in cash all amounts required to be paid by the Buyer, the term “Debt Financing” as used Surviving Corporation and the Transitory Subsidiary in connection with the transactions contemplated by this Agreement shall be deemed to include any Alternative Debt FinancingAgreement, including the Merger Consideration, the term “Debt Commitment Letters” as used in Option Consideration and all payments, fees and expenses related to or arising out of the transactions contemplated by this Agreement shall be deemed to include any Alternative Debt Commitment Letter and the term “Debt Financing Agreement” as used in this Agreement shall be deemed to include any Alternative Debt Financing Agreement. Purchaser will furnish correct and complete copies of any Alternative Debt Commitment Letter or Alternative Debt Financing Agreement to Casella promptly upon its execution.
(de) Casella agrees The Company agrees, at the Buyer’s sole cost and expense, to use its reasonable best efforts to provide Purchaser (and to cause its Subsidiaries and its and their respective Representatives to use their reasonable best efforts to provide) the Buyer with such cooperation in connection with the arrangement financing of the Merger (including the financings contemplated by the Debt Financing Commitment Letters) as may be reasonably requested by Purchaser the Buyer and to use its commercially reasonable efforts to cause appropriate officers and employees of Seller, the Companies and their respective Subsidiaries (i) to be available on a as customary basis to meet with prospective lenders, (ii) to assist with the preparation of disclosure documents, offering documents, information memoranda, projections and similar documents in connection therewith, (iii) to furnish Purchaser and Purchaser’s financing sources with financial statements and financial and other pertinent information regarding the Companies and their Subsidiaries, as may be reasonably requested by Purchaser, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Purchaser in connection with the arrangement of financing for similar in all material respects to the transactions contemplated herebyFinancing, in each case which will become effective only on provided that (i) no liability or after the Closing, (v) to take such reasonable actions as may be required to facilitate the pledge of collateral to secure such financing obligation (including cooperation in connection with any liability or obligation to pay any commitment or other similar fee) of the pay-off of existing Indebtedness and the release of Liens related thereto), (vi) to obtain all waivers, consents and approvals from other parties to Contracts and Liens to which the Companies Company or any of their respective its Subsidiaries is a party under any certificate, document or by which any of them, their assets or properties or instrument shall be effective until the Purchased Assets are bound or subject, Effective Time and (vii) to take all other actions necessary to permit the consummation none of the financing contemplated by Commitment Letters. Notwithstanding the foregoing, neither Casella nor Company or any of its Subsidiaries shall be required to pay take any commitment action under any certificate, document or other similar fee instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or incur any other liability that would be effective prior to the Effective Time and (ii) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries. Subject in all cases to the proviso to the immediately preceding sentence, such cooperation shall include the following: (A) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing; (B) delivery to the Buyer, the Transitory Subsidiary and their Financing Sources of the Financing Information as promptly as reasonably practicable following the Buyer’s request; (C) participation by senior management of the Company in the negotiation of, and (subject to clause (i) of the preceding sentence) the execution and delivery of Debt Financing Documents; (D) using its reasonable best efforts to take such actions as are reasonably requested by the Buyer, the Transitory Subsidiary or their Financing Sources to facilitate the satisfaction on a timely basis of all conditions precedent contained in paragraphs 8, 10, 11 and 12 of Exhibit C to the Debt Commitment Letters; and (E) using reasonable best efforts to arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all Indebtedness contemplated by the Debt Commitment Letters to be paid off, discharged and terminated on the Closing Date (the “Existing Company Debt”). Purchaser The Company will provide to the Buyer, the Transitory Subsidiary and their Financing Sources such information as may be necessary so that the Financing Information and Marketing Material are complete and correct in all material respects and do not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading. The Company hereby consents to the use of all of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks. All non-public or otherwise confidential information regarding the Company obtained by the Buyer or the Transitory Subsidiary or any of their respective Representatives pursuant to this Section 5.4(e) shall be kept confidential in accordance with the Confidentiality Agreements; provided that the Company agrees that the Buyer and the Transitory Subsidiary may share non-public or otherwise confidential information with the Financing Sources, and that the Buyer, the Transitory Subsidiary and such Financing Sources may share such information with potential Financing Sources in connection with the marketing of the Debt Financing if the recipients of such information agree to customary confidentiality arrangements. The Buyer shall, promptly upon request by Casellathe Company, reimburse Casella the Company for all reasonable out-of-pocket costs incurred by Casella the Company or any of its subsidiaries Subsidiaries in connection with such cooperationthe cooperation contemplated by this Section 5.4(e). All non-public The Buyer and the Transitory Subsidiary shall, on a joint and several basis, indemnify and hold harmless the Company and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the arrangement of the financings contemplated by the Commitment Letters and any information utilized in connection therewith (other than historical information relating to the Company approved by the Company for use therein).
(f) Neither the Buyer nor the Investor shall engage any Financing Source on an exclusive basis or otherwise confidential information regarding Casella or its Subsidiaries obtained by Purchaser or its representatives or on terms that would reasonably be expected to prevent such Financing Source from providing financing sources pursuant to this Section 6.21(d) shall be kept confidential in connection with an Acquisition Proposal made during the Non-Exclusivity Period in accordance with the Confidentiality AgreementSection 6.1.
(eg) Notwithstanding anything to the contrary contained in For purposes of this Agreement nothing in this Section 6.21 shall require, and in no event shall commercially reasonable efforts of Purchaser be deemed or construed to require, Purchaser to (i) incur the Debt Financing on terms materially less favorable, in the aggregate, to Purchaser than those contained in the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise).Agreement:
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