Debt Financing. The Company and Parent agree (i) to use their reasonable best efforts to provide, and to use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors in connection with the arrangement of the Debt Financing, provided that nothing in this clause (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following: (a) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing; (b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith; (c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing; (d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information; (e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders; (f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date; (g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness; (h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements; (i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and (j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources. (k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. (l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. (m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closing.
Appears in 2 contracts
Samples: Investment and Transaction Agreement (Id Systems Inc), Investment and Transaction Agreement (Pointer Telocation LTD)
Debt Financing. The Company and Parent agree (i) to use their reasonable best efforts to provideFrom the date of this Agreement until the Closing, the Company shall, and to use their reasonable best efforts to shall cause their respective officers, directors, employees, financial advisors, counsel, accountants and other its Representatives and Affiliates to provide, and (ii) to exerciseto, at the request of the InvestorsParent’s expense, their rights under the Porsche Merger Agreement use reasonable efforts to seek compliance by Porsche with its obligations to provide, all provide customary cooperation reasonably requested by the lenders under the Debt Financing and/or Investors Parent in connection with the arrangement of obtaining the Debt Financing, provided including the following (it being understood and agreed that nothing in this clause (ii) no event shall require any party be required to take any action in respect of the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited following to the following:extent that doing so would be commercially unreasonable):
(a1) participating (assisting with the preparation of appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, customary materials for rating agency presentations, due diligence sessionsoffering documents, bank information memoranda (including the delivery of customary representation letters) and sessions similar documents reasonably required by Parent in connection with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(b2) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any customary pledge and security documents, currency or interest hedging arrangements and other definitive financing documents consistent with the Debt Commitment Letter as in effect on the date of this Agreement, closing certificates or other similar documents as may be reasonably requested by Parent to be effective only at the lenders under the Debt Financing Closing;
(including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably 3) facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d4) subject to receipt by Parent of customary confidentiality undertakings from Financing Sources, furnishing to the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)Sources identified by Parent, as promptly as practicable, any “know your customer” information requested by the Financing Sources or such financial and other pertinent information available to the Company regarding the Company as may be reasonably requested by Parent to the extent required to consummate the Debt Financing in accordance with the Required Financing Informationterms of the Debt Commitment Letter as in effect on the date hereof;
(e5) cooperating requesting its independent accountants to cooperate with the lenders under the Debt Financing to obtain and assist in preparing customary and reasonable corporate appropriate information packages and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral offering materials (including obtaining and delivering any pay-off letters and other cooperation customary comfort letters) to the extent required in connection with the repayment marketing of the Debt Financing as set forth in the Debt Commitment Letter as in effect on the date of this Agreement;
(6) making available appropriate officers and employees, on reasonable advance notice, to participate in a reasonable number of meetings with prospective lenders and investors and road shows at mutually agreeable dates and times;
(7) permitting appropriate officers, who will continue in such positions or in similar positions after the Closing, to execute documents in accordance with this Section 5.4(g); and
(8) taking all necessary corporate or entity actions, which shall be conditioned on the occurrence of the Closing, reasonably requested by Parent to permit any of the actions contemplated by this Section 5.4(g) required in connection with the consummation of the Debt Financing and to permit the proceeds thereof to be made available to Parent at the Closing.
(ii) Nothing in this Section 5.4(g) requires the Company, its Subsidiaries and their respective Affiliates to:
(1) provide any assistance to the extent it would interfere with the ongoing business or operations of the Company, its Subsidiaries and their respective Affiliates;
(2) encumber any of the assets of the Company, its Subsidiaries and their respective Affiliates prior to the Closing;
(3) require the Company, its Subsidiaries and their respective Affiliates to pay any commitment or other retirement of existing indebtedness and fee, expenses or other costs or make any other payment in connection with the release and termination of any and all related liens) on or Debt Financing prior to the Closing Date;
(g4) delivering notices take any action that would result in a breach of prepayment within any Contract in effect as of the time periods required by date hereof, result in a violation of Law or result in a violation of organizational documents of the relevant agreements governing indebtedness Company, its Subsidiaries and obtaining customary payoff letterstheir respective Affiliates or impose any liability on the Company, lien terminations its Subsidiaries and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtednesstheir respective Affiliates;
(h5) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders authorize, execute or investors, in connection with deliver any marketing efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) definitive documentation or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) certificates in connection with the Debt Financing so long as such logos that would be effective prior to the Closing Date or that are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.conditioned upon Closing;
(k6) No lender under be responsible for the Debt Financing will have preparation of any liability to the Company or pro forma financial information; or
(7) provide any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwiselegal opinion. Neither the Company nor its Subsidiaries nor their respective Affiliates, nor any of their respective directors or officers, are required to take any action in the capacity as a member of the board of directors of the Company, its Subsidiaries and their respective Affiliates will have any liability to the lender authorize or any of its Affiliates relating to or arising out approve the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwiseFinancing.
(liii) Notwithstanding anything Parent will, promptly upon request by the Company, reimburse the Company for all out-of-pocket costs and expenses incurred by the Company, its Subsidiaries and their respective Affiliates, and their respective officers, employees, representatives and advisors, in connection with their respective obligations pursuant to the contrary in this Agreement, Section 5.4(g). Parent acknowledges and agrees that none of the Company, any of the Company its Subsidiaries or any of its or and their respective directors or officers or other personnelAffiliates shall, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement , incur any liability to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including Person under any guarantee Debt Financing and that Parent will indemnify and hold harmless the Company, its Subsidiaries and their respective Affiliates, and their respective directors, officers, employees, representatives and advisors, from and against any and all losses, damages, liabilities, claims, costs, expenses, judgments, penalties and fines suffered or pledge incurred by any of them arising in whole or any other document relating to in part in connection with such cooperation, the Debt Financing prior to and any information utilized in connection therewith, other than incurred as a result of such parties’ gross negligence, willful misconduct or intentional fraud. The obligations of Parent in this Section 5.4(g) shall survive the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence termination of the Closingthis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Ares Capital Corp), Merger Agreement (American Capital, LTD)
Debt Financing. The Company and Parent agree (i) to use their reasonable best efforts to provideshall, and to shall cause each of its Subsidiaries to, use their its reasonable best efforts to cause its and their respective officers, directors, employees, financial advisors, counselauditors and agents to, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, provide all cooperation and assistance reasonably requested by necessary (subject to the lenders under the Debt Financing and/or Investors limitations set forth in Section 6.6(a)) in connection with the arrangement of the Debt Financing, provided that nothing in this clause including (iii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, participation in meetings, presentations, due diligence sessions, sessions and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(bii) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentationsbusiness projections, bank information memoranda financial statements, offering memoranda, private placement memoranda, prospectuses and similar documents; (2) memoranda and similar documents; documents and (3iii) forecasts delivery of financial statements for one or more periods following the Closing Date (whichcomfort letters of accountants, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort lettersFinancing, in each case, as may be reasonably requested by Parent. The Company agrees to allow Parent's accounting representatives the lenders under opportunity to review the Debt Financing and/or financial statements in draft form and to allow such representatives access to the Investors (in connection Company and supporting documentation with respect to the arrangement preparation of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, such financial statements and the granting of security interests in respect of independent auditors' working papers relating to procedures performed relating to such financial statements. Notwithstanding the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)foregoing, as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective agreements prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is unless such agreements shall only be effective prior to upon the Closing.
, (mii) Notwithstanding anything in this Agreement counsel for the Company shall not be required to the contrarydeliver any legal opinions, (iii) none of the Company or the Company its Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee fee or pledge or incur any other document relating to liability in connection with the Debt Financing prior to the Closing and (iv) all obligations in this Section 6.16 shall be subject to applicable laws relating to exchange of information and attorney-client communication and privileges. Following the date hereof, Parent shall promptly disclose to the Company any amendment or (b) enter into any binding agreement or commitment modification, or any resolution termination or otherwise take any corporate or similar action with respect to cancellation of, the Debt Financing that, in each case, is not conditioned on the occurrence of the ClosingFinancing.
Appears in 2 contracts
Samples: Merger Agreement (Titan Corp), Merger Agreement (L 3 Communications Holdings Inc)
Debt Financing. The Company and Parent agree (i) Parent shall keep the Company (on behalf of the Sellers) informed of the status of its efforts to arrange any Debt Financing (including providing the Company (on behalf of the Sellers) with copies of draft and definitive agreements and other documents related to such Debt Financing reasonably requested by the Sellers, subject to the terms of applicable confidentiality undertakings). Each of Parent and CanCo shall, and shall cause each of its Affiliates to, use its reasonable best efforts to (i) consult with the Sellers and their Representatives in connection with the timing, marketing and syndication of any Debt Financing and the negotiation of the definitive agreements with respect to any Debt Financing and (ii) provide the Company (on behalf of the Sellers) and its Representatives with a reasonable opportunity to review and comment on any financing documents (and drafts thereof, including fee letters) in connection with any Debt Financing; provided, however, that neither Parent nor CanCo shall in any event be required to see that any such additions, deletions or changes are incorporated in the definitive versions of such financing documents.
(ii) LCCI shall, and the Company shall cause LCCI to, at Parent’s sole cost and expense, use their reasonable best efforts to provide, cooperate with the Buyers and to use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other authorized Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors in connection with the arrangement of the any Debt Financing, provided that nothing in this clause including (iiA) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable timesparticipating, upon on reasonable advance notice, in meetingsa reasonable number of meetings and at reasonable locations, with respect to drafting sessions, presentations, due diligence sessionsroad shows, and sessions with rating agenciesagencies and due diligence, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(bB) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of furnishing such financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents information as may be reasonably requested by the lenders under Buyers in connection with such Debt Financing; and (C) providing assistance in respect of the Debt Financing (including using reasonable best efforts to obtain consents preparation of accountants for use of their reports in any materials relating to the Debt Financing underwriting or placement agreements, informational and accountants’ comfort lettersmarketing materials, and pledge and security documents and other definitive financing documents; provided, that, in each caseof (A) through (C), any private placement memoranda, offering memoranda or prospectuses need not be issued by any Seller prior to the Closing Date, (y) no Seller be required to become subject to any obligations or liabilities with respect to such agreements or documents prior to the Closing Date and (z) nothing shall obligate any Seller to provide a solvency certificate or any similar certificate, to declare or make any determinations with respect to any determinations with respect to any dividends or to provide any information that would violate any applicable obligations of confidentiality or result in a violation of applicable Law or loss of any privilege. Any information provided to the Buyers pursuant to this Section 6.10(b)(ii) shall be subject to the Confidentiality Agreement. Parent shall promptly reimburse the Sellers for all reasonable out-of-pocket costs and expenses incurred by the Sellers in connection with such cooperation. The Company (on behalf of the Sellers) and its Representatives shall be given a reasonable opportunity to review and comment on any financing documents (and drafts thereof, including fee letters) and any materials that are to be presented during any meetings conducted in connection with any Debt Financing at which they are present, and Parent shall give due consideration to all reasonable additions, deletions or changes suggested by the Company (on behalf of the Sellers) and its Representatives with respect to the financing documents; provided, however, that neither Parent nor CanCo shall in any event be required to see that any such additions, deletions or changes are incorporated in the definitive versions of such financing documents. The Buyers acknowledge and agree that no Seller or any of its respective Affiliates and Representatives have any responsibility for, or incur any liability to any Person under or in connection with, the arrangement of any Debt Financing that Parent or CanCo may raise in connection with the Transactions unless attributable to their gross negligence or a material breach of their obligations under Section 6.10(b)(ii). Notwithstanding anything to the contrary herein, the condition set forth in Section 9.2(b), as reasonably requested by it applies to the lenders Sellers’ obligations under the this Section 6.10(b)(ii), shall be deemed satisfied unless any Debt Financing and/or has not been obtained primarily as a result of the Investors (Sellers’ gross negligence or willful and material breach of its obligations under this Section 6.10(b)(ii). Parent and CanCo shall, on a joint and several basis, indemnify and hold harmless the Sellers, their Affiliates and their respective Representatives from and against any and all Damages suffered or incurred by them in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the any Debt Financing and/or the Investors (and any information utilized in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior therewith unless attributable to the Closing Date;
(g) delivering notices Sellers’ gross negligence or willful and material breach of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders their obligations under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sourcesSection 6.10(b)(ii).
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(liii) Notwithstanding anything to the contrary contained herein, in the event Parent or its Affiliate provides (or irrevocably commits in writing to provide) funds sufficient to satisfy the ABL Canadian Obligations and the Liz Obligations, (A) Parent shall have no obligations under Section 5.7 and this AgreementSection 6.10 (other than the final sentence of Section 6.10(b)(ii)), none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, and such provisions shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing thatdisregarded, in each case, is not conditioned on case to the occurrence of extent related to any Debt Financing and (B) the ClosingSellers shall have no obligations under this Section 6.10.
Appears in 1 contract
Debt Financing. The Company and Parent agree (i) to use their reasonable best efforts to provide, and to use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors in connection with the arrangement of the Debt Financing, provided that nothing in this clause (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise of Prior to the Closing, the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessionsshall, and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
shall cause its Affiliates (b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (whichincluding, for the avoidance of doubt, will its Subsidiaries) to, and shall use its reasonable best efforts to cause its and their respective Representatives (including legal and accounting representatives) to, cooperate in any manner that is reasonably requested by Buyer in connection with Buyer’s efforts to obtain debt financing (the “Debt Financing”), the proceeds of which may be applied in whole or in part to finance the transactions contemplated by this Agreement (provided that such requested cooperation does not include or be deemed to require unreasonably interfere with the ongoing operations of the Company to prepare such forecasts of financial statementsand its Subsidiaries), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
including: (ci) cooperating assisting Buyer with the lenders under the Debt Financing and/or the Investors preparation of materials for (A) customary lender presentations, syndication memoranda, bank information memoranda and similar documents required in connection with the arrangement Debt Financing and (B) rating agency presentations; (ii) (A) furnishing Buyer and the financing sources for the Debt Financing (the “Debt Financing Sources”), as promptly as practicable, with (x) the audited consolidated balance sheets and the related audited consolidated statements of income, changes in members’ equity and cash flows of the Company for the two most recently completed fiscal years ended at least 75 days before the Closing Date and (y) the unaudited consolidated balance sheet and the related unaudited statements of income, changes in members’ equity and cash flows of the Company for any subsequent fiscal quarter and the portion of the fiscal year through the end of such quarter (other than in each case the fourth quarter of any fiscal year) ended at least 40 days prior to the Closing Date, and for the comparable period of the prior fiscal year, in the case of each of clauses (x) and (y), prepared in accordance with GAAP; (B) furnishing Buyer and the Debt FinancingFinancing Sources as promptly as practicable with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for such purposes; and (C) furnishing Buyer and the Debt Financing Sources all financial or other information regarding the Company and its Subsidiaries reasonably requested in connection with the preparation of bank information memoranda, lenders’ presentations and registration of other customary marketing materials relevant to the Debt Financing; (iii) executing and delivering any guarantees, pledge and security documents, currency or interest hedging arrangements and arrangements, other definitive financing documents and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), Buyer and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
; (d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(eiv) cooperating with the lenders under Debt Financing Sources’ due diligence, to the extent customary and reasonable, including by granting the Debt Financing Sources access to obtain the Company’s cash management and accounting systems and assisting in permitting the Debt Financing Sources to complete customary field examinations, collateral audits, asset appraisals and reasonable corporate surveys relating to the receivables and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation inventory of the pledge Company; (v) if EKS&H LLLP shall have withdrawn its audit opinion with respect to any of collateral the audited financial statements included in clause (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness ii) above, furnishing Buyer and the release Debt Financing Sources as soon as practicable and termination of in any and all related liens) on or event prior to the Closing Date;
Date with a new unqualified audit opinion with respect to such financial statements by EKS&H LLLP or another nationally-recognized independent public accounting firm reasonably acceptable to Buyer; (gvi) delivering notices if (A)(1) any of prepayment within the time periods financial statements included in clause (ii) above shall have been restated or (2) the Company, the Company’s board of directors or similar governing body or EKS&H LLLP shall have determined that a restatement of any such financial statements is required by and (B) the relevant agreements governing indebtedness Company or EKS&H LLLP, as applicable, has not subsequently determined and obtaining customary payoff lettersconfirmed in writing to Buyer that no restatement shall be required in accordance with GAAP, lien terminations furnish Buyer and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing Sources as soon as practicable and in any event prior to the distribution of information to prospective lenders or investorsClosing Date with such restated financial statements; and (vii) furnishing Buyer and its debt financing sources promptly, and in connection with any marketing efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least event no later than three (3) Business Days prior to the Closing DateClosing, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is that any lender, provider or arranger of any Debt Financing has reasonably requested by at least ten (10) Business Days prior to the Closing Date in connection with such lenders relating to debt financing under applicable “know your customer” and anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, including, without limitation, the PATRIOT Act and the CDD Rule; provided that neither the Company and nor any of its Subsidiaries Affiliates shall comply, and shall seek be required to have Porsche and its Subsidiaries comply, pay any commitment or other similar fee in connection with the covenants applicable Debt Financing that is not subject to the expense reimbursement provision contained in clause (c) below; provided, further, that the effectiveness of any of them set forth in documentation executed by the Porsche Merger Agreement Company with respect to the Debt FinancingFinancing shall be subject to the consummation of the Closing. To the extent the financial statements referred to in clause (ii)(A)(x) of the foregoing sentence include audited financial statements for fiscal year 2018 or the financial statements referred to in clause (ii)(A)(y) of the foregoing sentence include unaudited financial statements for any fiscal quarter ending in 2019, the Company shall, and shall cause its Affiliates (including, for the avoidance of doubt, its Subsidiaries) to, and shall use commercially its reasonable best efforts to cause its and their respective Representatives (including legal and accounting representatives) to, cooperate with Buyer and its Representatives (including legal and accounting representatives), to be satisfied all conditions cause such financial statements to fund meet the Debt Financing. requirements of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as amended, and the Exchange Act of 1934, as amended.
(b) The Company hereby consents to the reasonable use of its logos (without granting to any person any rightall of the Company’s logos, title or interest therein except for the limited rights expressly provided in this sentence) names and trademarks in connection with the Debt Financing so long as Financing; provided that such logos are logos, names and trademarks shall be used solely in a manner that is not intended to nor or reasonably likely to harm or disparage the Company, or its reputation or goodwill.
(c) Buyer shall (i) promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket fees, costs and expenses (including, to the extent incurred at the request or with the consent of Buyer, reasonable legal fees) incurred by the Company in connection with the cooperation or assistance contemplated by this Section 7.17 and (ii) indemnify and hold harmless the Company and its Affiliates and Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith, except to the extent that any of the foregoing arise from (x) the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or the reputation any of its Affiliates or goodwill Representatives, or (y) information provided by or on behalf of the Company or any of its marks Affiliates or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sourcesRepresentatives.
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closing.
Appears in 1 contract
Debt Financing. The Company (a) During the Interim Period, Oncor Holdings and Parent Oncor each agree (i) to use their commercially reasonable best efforts to provide, and to use their commercially reasonable best efforts to cause their Subsidiaries and their respective officers, directors, employees, financial advisors, counsel, accountants officers and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all commercially reasonable cooperation reasonably requested by the lenders under the Debt Financing and/or Investors in connection with the arrangement of the Debt Financing, provided that nothing in this clause (ii) which shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
: (ai) participating (with participation by appropriate seniority and expertise members of senior management of the Company Oncor Entities, which participation will be limited to participate as possible) at reasonable times, upon reasonable advance notice, providing Oncor financial and operational information in meetings, presentations, road shows, due diligence sessions, and sessions with prospective lenders, investors and rating agencies, in each case, at mutually agreeable times and otherwise cooperating locations and upon reasonable notice, (ii) providing information in its control to Purchasers that is necessary for Purchasers to prepare materials to rating agencies and rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the marketing Debt Financing and/or Bond Financing, together with customary authorization letters authorizing the distribution of Oncor information to prospective lenders or investors, (iii) furnishing all financial statements described in paragraph 5 of Exhibit D to the Debt Commitment Letter, as in effect on the date hereof and (A) all information and data reasonably required by Purchasers to prepare all pro forma financial statements required in connection with the Debt Financing, as well as (B) all financial statements and financial data of the type and form required by Regulation S-X and Regulation S-K under the Securities Act for offerings of debt securities on a registration statement on Form S-3 under the Securities Act, including all information required to be incorporated therein (subject to exceptions customary for a private Rule 144A offering involving high-yield debt securities and in no event shall Oncor Holdings or Oncor be required to provide financial information otherwise required by Rule 3-10 (other than customary qualitative disclosure with respect thereto) and Rule 3-16 of Regulation S-X (or any Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K) that would not be reasonably necessary for the independent accountants to deliver customary “comfort” (including as to “negative assurance” comfort and change period)), in connection with the Debt Financing (the information required to be delivered pursuant to this clause (iii) being referred to as “Required Financial Information”), (iv) using commercially reasonable efforts for any to assist Parent and the Lenders or their respective Affiliates in obtaining corporate, facilities and securities ratings, as applicable, in connection with the Debt Financing prior to the launch of general syndication of the Debt Financing;, (v) providing information in its control that is necessary for the preparation of customary schedules and exhibits in connection with the Debt Financing, (vi) causing Oncor’s independent auditors to cooperate in connection with the Debt Financing (including providing accountants’ comfort letters and consents from Oncor’s independent auditors to the extent required by the Debt Commitment Letter or the definitive agreements with respect to the Debt Financing) and (vii) otherwise assisting Parent to satisfy any express conditions precedent to the Debt Financing which require Oncor information, provided that with respect to the foregoing clauses (i)-(vii), (A) Oncor shall not be required to endorse any particular strategy or structure, (B) the Purchasers shall be responsible for any projections, (C) such requested cooperation shall not unreasonably interfere with the ongoing operations of any Oncor Entity and (D) no Oncor Entity shall be required to pay any commitment or other similar fee or incur any other liability or obligation in connection with the Debt Financing. Nothing contained in this Section 13 or otherwise shall require any Oncor Entity to be an issuer or other obligor with respect to the Debt Financing.
(b) assisting Notwithstanding anything herein to the lenders under contrary, none of the Oncor Entities or their respective Representatives shall be required to take any action that would subject such Person to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing and/or or their performance of their respective obligations under this Section 13 or any information utilized in connection therewith. The Purchasers shall indemnify and hold harmless the Investors (Oncor Entities and their respective Representatives from and against any and all Costs suffered or incurred by them in connection with the arrangement of the Debt Financing) with Financing and the timely preparation performance of customary: (1) materials for rating agency presentations, bank their respective obligations under this Section 13 and any information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required utilized in connection therewith;
therewith (c) cooperating with the lenders under the Debt Financing and/or the Investors other than Costs arising from any untrue statement of a material fact in information provided by any Oncor Entity, or any omission of a material fact required to be stated in such information or necessary in order to make such information not misleading). Parent shall, promptly upon request of Oncor Holdings or Oncor, reimburse any Oncor Entity for all reasonable and documented out-of-pocket costs and expenses incurred by such Oncor Entity (in connection with the arrangement including those of the Debt Financingits accountants, consultants, legal counsel, agents and other representatives) in connection with the preparation cooperation required by this Section 13. Each of Oncor Holdings and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by Oncor hereby consents to the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement logos of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts Oncor Entities in connection with the Debt Financing, ; provided that the recipients of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor or reasonably likely to harm or disparage the Company any Oncor Entity or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sourcesOncor Entity.
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closing.
Appears in 1 contract
Samples: Oncor Letter Agreement (Oncor Electric Delivery Co LLC)
Debt Financing. The (a) From the date hereof until the Effective Time, the Company and Parent agree (i) to use their reasonable best efforts to provideshall, and to shall use their its reasonable best efforts to cause each of their respective officers, directors, employeesemployees and representatives to, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all provide such cooperation as is reasonably requested by the lenders under the Debt Financing and/or Investors Parent in connection with the arrangement of the Debt Financing, provided that nothing in this clause including (iiA) shall require the Company or Parent causing appropriate officers and employees to commence be available, on a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority customary basis and expertise of the Company to participate as possible) at reasonable times, upon on reasonable advance notice, to meet with prospective lenders and investors in meetings, presentationsdrafting sessions, due diligence sessions, management presentations, road shows and sessions with rating agencies, and otherwise cooperating (B) assisting with the marketing efforts for any of the Debt Financing;
(b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda business projections and financial statements (including those required by the SEC), and assisting Parent in preparing offering memoranda, private placement memoranda, prospectuses and similar documents; , (2C) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (whichrequesting its independent accountants to provide reasonable assistance to Parent, for the avoidance of doubt, will not include or be deemed including requesting such accountants to require the Company provide consent to Parent to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their audit reports in any materials relating to the Debt Financing Company and accountants’ any necessary “comfort letters,” (D) forming, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
, new wholly owned subsidiaries, and transferring assets into those subsidiaries, to the extent not prohibited by law or any contracts to which the Company is a party or is bound (gprovided that in the event a contract prohibits such transfer and the transfer cannot otherwise be structured in a manner to avoid conflict with the terms of such contract, the Company agrees to use reasonable efforts to obtain consents necessary to effectuate such transfers), and (E) delivering notices of prepayment within provide reasonable access to the time periods Owned Real Property, in accordance with Section 4.2, during normal business hours to the extent necessary for Parent to obtain surveys, engineering reports, zoning reports, environmental reports and appraisals required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters Financing Commitments with respect to the lenders under Owned Real Property. Parent shall pay to the Debt Financing authorizing Company any costs or expenses incurred by the distribution of information to prospective lenders or investors, in connection with any marketing efforts Company in connection with the Debt Financingforegoing.
(b) Notwithstanding the foregoing or Section 4.4 or 5.3(c), provided the parties acknowledge and agree that the recipients of such information agree to customary confidentiality arrangements;
nothing in this Agreement shall (i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of require the Company, any of the Company Subsidiaries Stockholders or any of its or their respective officers, directors or officers Affiliates to (x) enter into or execute any commitment letter, underwriting or placement agreement, pledge or security document, loan agreement, note purchase agreement, registration rights agreement, indenture or any other Contract, or any registration statement or other personnelfiling with the SEC, shall be required or any certificate or other document in connection with any financing or other funds sought by this Section 7.15 to Parent, (y) commence or take any other action with respect to any tender offer for, or provide any assistance that unreasonably interferes in consent with respect to, or any material respect with the ongoing operations repayment of, or amendment or modification to, any debt securities or other indebtedness of the Company and the Company Subsidiaries or to execute or deliver any certificate(other than ministerial actions, document, instrument or agreement that is effective prior including facilitating access to the Closing trustee with respect to, or agree providing a list of the holders of, any such debt securities), or (z) obtain any rating agency confirmations or approvals, (ii) require counsel to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Stockholders to deliver any legal opinion in connection with any financing or funds sought by Parent, or (iii) require the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to of the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment Stockholders, or any resolution officer, director, employee, counsel or otherwise take advisor thereof, to make any corporate representation or similar action warranty, incur any liability or provide for any indemnification or expense reimbursement in connection with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closingany financing or funds sought by Parent.
Appears in 1 contract
Debt Financing. The Company (a) Parent and Parent agree (i) to Merger Sub shall use their respective reasonable best efforts to providetake, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange, consummate and obtain the Debt Financing as promptly as practicable, but in any event on or prior to Closing. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange, consummate and obtain the Debt Financing.
(b) Prior to the Closing or the earlier expiration or termination of the Marketing Period, the Company Entities shall, and to shall use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants employees and other Representatives and Affiliates to provide, and (ii) to exerciseto, at the request of the InvestorsParent’s sole cost and expense, their rights under the Porsche Merger Agreement provide customary cooperation to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors Parent in connection with the arrangement Debt Financing as may be reasonably requested by Parent, including by:
(i) furnishing Parent and the Debt Financing Sources with the Required Information, any updates to any Required Information as may be necessary for such Required Information to remain Compliant throughout the Marketing Period and such other historical financial information and other pertinent information regarding the Company Entities as may be reasonably requested by Parent and that is customarily needed for 144A-for-life debt offerings;
(ii) participating (and causing senior management and using reasonable best efforts to cause Representatives and advisors to participate) 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 investors with respect to, the Debt Financing, provided that nothing in this clause (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings), presentations, road shows, drafting sessions, due diligence sessions, sessions (including using reasonable best efforts to cause its independent auditors to participate therein) and sessions with rating ratings agencies, and otherwise cooperating in each case in connection with the marketing efforts for any of the such Debt FinancingFinancing and with reasonable advance notice and at dates, times and locations as may be mutually agreed;
(biii) upon reasonable prior written notice, assisting the lenders under Parent and the Debt Financing and/or Sources in the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1A) confidential information memoranda, lender presentations and similar marketing documents, (B) investor presentations (including “roadshow” or investor meeting slides), (C) offering memoranda and private placement memoranda (including under Rule 144A) and (D) materials for rating agency presentations, bank in each case, solely to the extent involving information memoranda about the Company Entities;
(iv) executing and similar delivering (or assisting Parent in obtaining from legal counsel (including local counsel) to the Company and their advisors) any customary guarantee, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Xxxxxx and as may be necessary and customary in connection with the Debt Financing (including a solvency certificate of the chief financial officer of the Company) and otherwise facilitating the obtaining of guarantees; (2) memoranda provided, that all such guarantees and similar documentsother documents with respect to the Company Entities and their respective assets shall be authorized and become effective subject to, and only at, or as of, the Closing; and (3) forecasts of financial statements for one or more periods following the Closing Date (whichprovided, further, that, for the avoidance of doubt, will not include or neither any Company Entity nor any counsel to any Company Entity shall be deemed required to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (provide any legal opinion in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(dv) furnishing taking all corporate actions, subject to the lenders under occurrence of the Closing, reasonably requested by Parent that are necessary to permit the consummation of the Debt Financing and/or and to permit the Investors (in connection proceeds thereof, together with the arrangement of cash at the Debt FinancingCompany Entities, if any (not needed for other purposes), as promptly as practicable, with to be made available on the Required Financing InformationClosing Date to consummate the Closing and the other transactions contemplated by this Agreement;
(evi) cooperating with the lenders under providing customary authorization and representation letters to the Debt Financing to obtain customary and reasonable corporate and facilities ratingsSources, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested executed by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation on behalf of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff lettersCompany, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investorsinvestors and containing customary representations to the Debt Financing Sources regarding the accuracy and completeness of the information contained therein with respect to the Company and its Subsidiaries and, with respect to any “public version” of such materials, the absence of any material non-public information with respect to the Company and its Subsidiaries therein and that such written factual information (other than customary exceptions), when taken as a whole, to the extent provided by the Company Entities does not contain a material misstatement or omission that would make the statements contained therein materially misleading in light of the circumstances under which they are made;
(vii) assisting with Parent’s preparation of pro forma financial statements for Parent in compliance with Article 11 of Regulation S-X under the Securities Act as reasonably required or customarily included in offering materials for transactions involving the private placement of non-convertible high-yield bonds in connection with the Debt Financing provided, that (A) Parent shall be responsible for the preparation of such pro forma financial statements and any marketing pro forma adjustments giving effect to the transactions contemplated herein and (B) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records;
(viii) using reasonable best efforts to cause the independent auditors of the Company to provide reasonable and customary assistance and cooperation in connection with the Debt Financing, provided that including using reasonable best efforts to cause such independent auditors to provide consents to the recipients use of their audit reports and deliver customary “comfort letters” (which shall provide customary “negative assurance” and change period comfort) for a Rule 144A placement of securities (and to provide drafts of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation comfort letters in advance of the Debt Financing; and
(j) if requested by commencement of the Investors (in connection with the arrangement marketing of the Debt Financing) or lenders under with respect to financial information contained in the offering materials relating to the Debt Financing (and using reasonable best efforts to provide customary representations to such independent auditors in connection with the foregoing);
(ix) cooperating with the Debt Financing Sources’ due diligence in connection with the Debt Financing, to the extent customary and reasonable; and
(x) providing, at least three four (34) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested required by such lenders relating to applicable “know your customer” ”, beneficial ownership and anti-money laundering and any other applicable governmental rules and regulationsregulations including the USA PATRIOT Act to the extent requested at least eight (8) Business Days prior to the Closing Date. Without limiting provided, that such requested cooperation does not unreasonably interfere with the generality ongoing operations of the foregoing, Company Entities and no such cooperation shall require (a) the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to Entities or any of them set forth in the Porsche Merger Agreement with respect their respective Subsidiaries to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to incur any person liability or pay any right, title fee or interest therein except for the limited rights expressly provided in this sentence) expense in connection with the Debt Financing so long prior to the Closing, (b) the Company Entities or any of their respective Subsidiaries (i) in the case of individuals, to deliver, or be required to deliver, any certificate or instrument or take any action that would reasonably be expected to result in any personal liability or (ii) to make any representation, warranty or certification which the Company or such Subsidiary has determined in good faith is not true, (c) the pre-Closing board of directors or managers (or other managing person or group) of any Company Entity or any committee thereof to adopt a consent or resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or incur any personal liability, (d) the Company Entities or any of their respective Subsidiaries to execute prior to the Closing any financing documents that will be effective prior to the Closing, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Debt Financing, other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above, (e) the Company Entities or any of their respective Subsidiaries to take any corporate or similar actions that will be effective prior to the Closing to permit the consummation of the Debt Financing, (f) the Company Entities or any of their respective Subsidiaries to provide cooperation that the Company or such Subsidiary reasonably believes would (i) conflict with or violate, result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any applicable Law or Material Contract (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such applicable Law or Material Contract), (ii) result in the loss of attorney-client privilege or other similar legal privilege (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such privilege) or (iii) cause any of Company’s representations or warranties in this Agreement to be breached or any condition precedent set forth in this Agreement to fail to be satisfied, (g) the Company Entities or any of their respective Subsidiaries to consent to the pre filing of UCC-1s or the grant of liens on the Company Entities’ assets prior to the Closing, or (h) require any Company Entity or any of their respective Subsidiaries to prepare or deliver any financial statements or financial information in a form not customarily prepared by the Company or any financial information with respect to a fiscal period that has not yet ended, or for which the applicable quarterly or annual report has not been filed with the SEC or the delivery of projections, pro forma financial information or any other forward-looking information, in each case, other than the Required Information. In addition, nothing herein shall require any director, manager, officer or employee of the Company or any of its Subsidiaries who will not continue to hold such position following the Effective Time to execute any resolution(s) or written consent(s), or any certification, document, instrument or agreement, in connection with any financing contemplated by this Section 5.21, other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above. Parent covenants and agrees that any confidential information memoranda, lender presentations and similar marketing documents, material for investor presentations, offering memoranda and private placement memoranda (including under Rule 144A), materials for rating agency presentations and other offering documents or marketing materials contemplated hereby shall contain disclosures and disclaimers, to the extent applicable, reflecting the Company and/or its Subsidiaries as an obligor on the Debt Financing effective only at and after the Effective Time. The Company Entities hereby consent to the use of the Company Entities’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended to nor to, or reasonably likely to harm to, harm, disparage or disparage otherwise adversely affect the Company Entities or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion Entities, and solely in connection with a description of the Debt Financing becomes unavailable on Company and/or its Subsidiaries, including their businesses, or the terms Merger. Parent and conditions contemplated in the Debt Financing CommitmentXxxxxx Sub shall indemnify, defend and hold harmless the Company shall provideEntities and their respective shareholders, and shall seek to have Porsche and its managers, members, officers, directors, employees, financial advisorsother Affiliates, counselagents and Representatives (the “Company Indemnitees”) from and against any and all losses, accountants and other Representatives and Affiliates providedamages, such cooperation as may be reasonably requested claims, costs or expenses incurred by the Investors them in connection with obtaining alternative financing the provision of assistance pursuant to Section 5.21(b) and any information used in connection therewith, except any such losses, damages, claims, costs or expenses determined by a court of competent jurisdiction in a final non-appealable judgment to have resulted from alternative sources.
(ka) No lender under any willful misconduct or bad faith by the Debt Financing will have Company Indemnitees or (b) any liability material misstatement or omission in information relating to the Company Entities provided by the Company Indemnitees. Parent shall promptly upon the Company’s request reimburse the Company for all reasonable out-of-pocket and documented costs and expenses (including fees and disbursements of a single outside counsel and any additional outside counsel as reasonably consented to by Parent) incurred by the Company Entities in connection with such cooperation pursuant to Section 5.21(b). The obligations of Parent and Merger Sub set forth in this paragraph (collectively, the “Parent Indemnity and Reimbursement Obligations”) shall survive the Closing or any of its Affiliates relating to or arising out the termination of this Agreement, whether or not the Merger is consummated. All non-public or otherwise confidential information regarding the Company Entities obtained by Parent pursuant to Section 5.21(b) shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided that Parent shall be permitted to disclose such information (i) to the Debt Financing Sources, rating agencies and prospective lenders and investors of the Debt Financing or otherwiseany permitted replacement, whether at law or equityamendment, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing thatthereto, in each case, so long as such non-public or otherwise confidential information regarding the Company Entities is not conditioned on afforded substantially the occurrence same confidentiality protections as similar information of Parent that is distributed to such Persons and (ii) as, and in such case only to the extent, required by the Exchange Act, the rules and regulations of the ClosingSEC or any rule or regulation of any securities exchange upon which the securities of Parent are listed or traded.
(c) The Company hereby (i) consents to the inclusion of the financial statements referred to in Section 3.5(b) of this Agreement and the Required Information, as applicable, prior to the Closing in (A) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, any registration statement filed by Parent in connection with an offering or exchange of securities on Form S-1, Form S-3 or Form S-4 (or any successor forms) under the Securities Act in compliance with the requirements of Regulation S-X and Regulation S-K, as applicable, (B) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, the Proxy Statement, any Form 8-K or other Exchange Act filing and (C) subject to the provisions of Section 5.21(b), any prospectuses, private placement memoranda, lender and investor presentations, offering documents, bank information memoranda, rating agency presentations and similar documents customarily used in connection with the Debt Financing, including, any customary “offering memoranda” in connection with a debt securities offering, whether public or private and (ii) agrees to use reasonable best efforts to cause its independent auditors to provide any consents to the use of their audit reports in any registration statement or Exchange Act filing by Parent to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Xxxxxx.
(d) Without limiting the effect of Section 8.10, Xxxxxx and Xxxxxx Sub agree and acknowledge that their obligations to consummate the transactions contemplated herein are not subject to or conditioned upon their obtaining financing.
Appears in 1 contract
Debt Financing. The Company and Parent agree (i) to use their reasonable best efforts to provide, and to use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors in connection with the arrangement of the Debt Financing, provided that nothing in this clause (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise a) From the date hereof until the earlier of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior this Agreement pursuant to Section 8.1, Seller shall cause the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff lettersCompany, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts in connection with the Debt Financing, provided that (x) to or to cause its Representatives, including legal and accounting representatives, to prepare and furnish to Purchaser the recipients of such information agree Required Information, and (y) to customary confidentiality arrangements;
use commercially reasonable efforts to (i) taking all corporate cooperate with the marketing efforts for any portion of the Debt Financing, including by causing members of management and using commercially reasonable efforts to cause other Representatives of the Company and the Company Subsidiaries with appropriate seniority and expertise to participate in a reasonable number of meetings (including one-on-one meetings or conference calls with the Financing Sources, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies and other actions syndication activities, all at mutually agreed times and upon reasonable advance notice; (ii) reasonably assist in the preparation of (A) materials for rating agency presentations and (B) any offering documents, syndication documents and materials, including lender and investor presentations, rating and bank books, information memoranda (confidential and public), private placement memoranda, offering memoranda, registration statements, prospectuses and other similar documents (collectively, the “Offering Documentation”), in each case, to the extent customarily needed for financings of the type contemplated by the Debt Commitment Letter all at mutually agreed times and upon reasonable advance notice; (iii) request that the Company’s independent accountants provide any necessary customary consents to use their audit reports relating to the Company and the Company Subsidiaries in any Offering Documentation and any customary comfort letters, as reasonably requested by the lenders under the Debt Financing to permit the consummation Purchaser in connection with any offering of debt securities constituting a portion of the Debt Financing; and
(jiv) if requested provide customary authorization letters, to the extent contemplated by the Investors Debt Commitment Letter, authorizing the distribution of information relating to the Company and the Company Subsidiaries to any Financing Source and containing a customary representation to the Financing Sources as to such information relating to the Company and the Company Subsidiaries; (in connection v) furnish Purchaser and any Financing Source reasonably promptly all documentation and other information regarding the Company and the Company Subsidiaries required by any Governmental Entity with the arrangement of the Debt Financing) or lenders under respect to the Debt Financing under applicable “know your customer”, beneficial ownership and anti-money laundering and anti-terrorist financing rules and regulations, including the USA PATRIOT Act of 2001, in each case as shall have been reasonably requested in writing by Purchaser at least three ten (310) Business Days prior to the Closing Date, within a reasonable time furnishing Date and solely to the lenders under extent required by the Debt Commitment Letter; (vi) provide financial information regarding the Company customarily included in offering memoranda for private placements or registered offerings of debt securities of Purchaser of the type contemplated by the Debt Commitment Letter as in effect as of the date hereof and cooperate with the Financing with all documentation Sources’ requests for customary due diligence materials as are reasonably available to it and other information about are reasonably requested by Purchaser; and (vii) ensure that Purchaser benefits from the existing lending relationships of the Company and the Company Subsidiaries and Affiliates as is reasonably Subsidiaries; provided that any such requested by such lenders relating assistance to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting be provided pursuant to this Section 5.16 does not unreasonably interfere with the generality operations of the foregoing, the Company and its Subsidiaries shall comply, the Company Subsidiaries. Seller hereby consents (and shall seek cause the Company to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect consent) to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its the Company’s logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as in a form and manner mutually agreed in advance with the Company; provided, however, that such logos are used solely in a manner that is not intended to nor intended, or reasonably likely likely, to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks products, services, offerings or intellectual property rights. Notwithstanding the provisions of this Section 5.16, nothing in this Agreement shall require Seller or the Company or any of the Company Subsidiaries or any of their respective Representatives to (1) provide (x) any financial information with respect to any fiscal quarter for which financial statements are not required under the definition of Required Information, (y) any pro forma financial statements or information, or (z) prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice, (2) enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, (3) pass resolutions or consents to approve or authorize the execution of the Debt Financing or cause any of the Persons who are officers or directors of Seller, the Company or any of the Company Subsidiaries to do so, (4) agree to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt Financing prior to Closing or have any obligation of the Company Intellectual Property Rightsor any of the Company Subsidiaries under any agreement, certificate, document or instrument be effective until the Closing, (5) cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (6) provide access to or disclose information that the Seller, the Company or any of the Company Subsidiaries determines would jeopardize any attorney-client privilege of any of them or (7) take any action that would reasonably be expected to conflict with or violate this Agreement, its Organizational Documents or any applicable Laws. If Nothing contained in this Section 5.16(a) or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Purchaser shall (i) promptly upon request by the Company, reimburse the Seller, the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket fees, costs and expenses (including reasonable legal fees) incurred by them in connection with the cooperation or assistance contemplated by this Section 5.16 and (ii) indemnify and hold harmless the Seller, the Company, the Company Subsidiaries and their respective directors, officers, employees, Affiliates and its and their respective Representatives, from and against any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by them in connection with the arrangement of the Debt Financing, any information used in connection therewith and the performance of their respective obligations under this Section 5.16. For the avoidance of doubt, the Parties acknowledge and agree that the provisions contained in this Section 5.16(a), represent the sole obligation of the Seller, Holdco, the Company, the Company Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Purchaser with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
(b) Purchaser shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund the Required Amount on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Purchaser shall take or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions as described in the Debt Commitment Letter, including by (i) negotiating, executing and delivering definitive agreements with respect to the Debt Financing on the terms and conditions contemplated by the Debt Commitment Letter (the “Definitive Debt Financing Agreements”), (ii) satisfying on a timely basis (or obtaining waiver of) all conditions applicable to Purchaser to obtain such Financing as set forth in the Debt Commitment Letter, (iii) until the funding of the Debt Financing at or prior to the Closing, maintaining in full force and effect the Debt Commitment Letter, (iv) complying with its obligations and enforcing its rights under the Debt Commitment Letter and Definitive Debt Financing Agreements in a timely and diligent manner and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, consummating the Debt Financing at or prior to the date that the Closing is required to be effected pursuant to Section 2.3; provided that to the extent that Purchaser obtains funds at or prior to Closing (and Purchaser applies such funds at Closing to the payment of the Required Amount) from the issuance of unsecured bonds as contemplated by the Debt Commitment Letter, Purchaser will not be required to fund the corresponding amount of Debt Financing at Closing.
(c) Purchaser will not permit any amendment, supplement, modification or replacement to be made to, or permit any assignment of, or agree to permit any waiver of any provision or remedy under, the Debt Commitment Letter or the Definitive Debt Financing Agreements without the Company’s prior written consent, except that Purchaser may amend, supplement, modify or replace the Debt Commitment Letter or the Definitive Debt Financing Agreements (including by joining one or more additional lenders or agents as parties thereto, or by reallocating commitments or reassigning titles or roles to, or between or among, any entities party thereto (including replacement of a lender)) if such amendment, supplement, modification or replacement: (i) could not (A) reasonably be expected to prevent, impede or delay the consummation of the Sale or the Debt Financing, (B) adversely affect the ability of Purchaser to satisfy the conditions precedent to the funding of the Debt Financing or (C) reduce the aggregate amount of the Debt Financing; (ii) does not add new (or adversely modify any existing) conditions to the consummation of all or any portion of the Debt Financing and (ii) does not adversely impact the ability of Purchaser to enforce its rights against the other parties to the Debt Commitment Letter or any Definitive Debt Financing Agreement. Purchaser will promptly provide Seller with copies of any such amendment, supplement, modification or replacement. Purchaser will not terminate the Debt Commitment Letter or any Definitive Debt Financing Agreement other than in connection with a replacement thereof that complies with the first sentence of this clause (c).
(d) In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing CommitmentCommitment Letter, regardless of the reason therefor, and such portion is reasonably necessary to fund the Required Amount, Purchaser will as promptly as reasonably practicable notify the Company shall provideof such unavailability and use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, substitute financing that does not include any conditions to the consummation of such substitute financing that are more onerous than the conditions set forth in the Debt Commitment Letter as in effect as of the date hereof and shall seek in an amount sufficient, when added to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
(k) No lender under portion of the Debt Financing will have that is available, to fund the Required Amount (“Substitute Financing”). In the event any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Substitute Financing or otherwise, whether at law or equity, is obtained in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by accordance with this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate5.16(d), document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything references in this Agreement to the contrary, none Debt Financing will be deemed to refer to such Substitute Financing (in lieu of the Company Debt Financing replaced thereby), and if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Substitute Financing (such commitment letters, the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee“Substitute Commitment Letters”), including under any guarantee or pledge or any other document relating references in this Agreement to the Debt Financing prior Commitment Letter will be deemed to refer to the Closing or Substitute Commitment Letters (bin lieu of the Debt Commitment Letter replaced thereby), and all obligations of Purchaser pursuant to this Section 5.16(d) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action will be applicable thereto to the same extent as Purchaser’s obligations with respect to the Debt Financing that, in each case, is not conditioned on replaced thereby. Purchaser will deliver to the occurrence Company complete and accurate copies of any Substitute Commitment Letters and definitive agreements with respect to the ClosingSubstitute Financing promptly upon the execution thereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (SS&C Technologies Holdings Inc)
Debt Financing. The Company (a) Buyer shall, and Parent agree shall cause its Affiliates to, use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary proper or advisable, to arrange, obtain and consummate the UMB Financing on the terms and conditions described in the Financing Letter as promptly as practicable after the date hereof, including using commercially reasonable efforts to: (i) enter into definitive agreements with respect to the UMB Financing; (ii) satisfy (or obtain a waiver) on a timely basis of all conditions in such definitive agreements; (iii) consummate the UMB Financing contemplated by the Financing Letter at Closing or (B) obtain as promptly as possible alternative debt financing (the “Alternative Debt Financing”) in the amount necessary for Buyer to fund the Purchase Price, including using commercially reasonable efforts to (1) enter into definitive agreements with respect to the Alternative Debt Financing, (2) satisfy (or obtain a waiver) on a timely basis of all conditions in such definitive agreements and (3) consummate the Alternative Debt Financing at the Closing.
(b) Prior to the Closing, Sellers shall use their commercially reasonable best efforts to provideefforts, and to shall use their commercially reasonable best efforts to cause their respective officersAffiliates, directors, officers, employees, financial advisorsrepresentatives and advisors to, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all provide customary cooperation reasonably requested by the lenders under the Debt Financing and/or Investors in connection with the arrangement of the Debt Financing, provided that nothing in this clause (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort lettersBuyer, in each case, as to the extent within their control and at the sole cost of the Buyer, including: (i) furnishing Buyer and its lenders (each a “Debt Financing Source”), such information reasonably requested, to which Sellers have access, by any Debt Financing Source that is reasonably necessary to prepare a customary information memorandum and other customary presentation materials for the syndication of the Debt Financing; (ii) cooperating with the Debt Financing Sources involved in the Debt Financing to provide access to the Sellers’ assets, cash management and accounting systems; (iii) taking corporate actions, which may be conditioned on the occurrence of the Closing, that are reasonably requested by the lenders under the Debt Financing and/or the Investors (Buyer in connection with the arrangement consummation of the Debt Financing; and (iv) otherwise reasonably cooperating in Buyer’s efforts to obtain the Debt Financing.
(c) Notwithstanding anything in this Agreement to the contrary (including this Section 8.11(c)), and otherwise reasonably facilitating the pledging neither Sellers nor any of collateral, including but not limited their Affiliates or representatives shall: (i) be required to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering pay any pay-off letters and other cooperation in connection with the repayment commitment or other retirement of existing indebtedness and the release and termination of fee or reimburse any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts expenses in connection with the Debt Financing; (ii) be required to incur any liability or give any indemnity in connection with the Debt Financing; (iii) be required to take any action that would require any director, provided that the recipients officer or employee of such information agree Sellers or any of their Affiliates to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under execute, or be required to enter into, any document, agreement, certificate or instrument in connection with the Debt Financing except as may be effective at or after the Closing; (iv) be required to take any action in connection with the Debt Financing that would unreasonably interfere with the ongoing business or operation of Sellers or any of their Affiliates or representatives; (v) result in Sellers or any of their Affiliates incurring any liability with respect to the matters relating to the Debt Financing or cause any director, officer or employee of Sellers to incur any personal liability in connection with the Debt Financing; (vi) provide in connection with the Debt Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged; (vii) be required to take any organizational actions prior to the Closing to permit the consummation of the Debt Financing; and
and (jviii) if requested neither Seller shall be required to provide, and Buyer shall be solely responsible for, (A) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro form financial information, or (B) any solvency certificate or similar certification or representation. Buyer shall (A) promptly upon request by the Investors Sellers reimburse Sellers for all documented costs or expenses incurred in good faith by Sellers in connection with such cooperation described in this Section 8.11 and (B) indemnify and hold harmless Sellers and their respective Affiliates and representatives 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) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and providing any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) information utilized in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rightstherewith. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Companycondition set forth in Section 8.10, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnelas it applies to Sellers’ obligations under this Section 8.11, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes deemed satisfied unless Sellers have breached in any material respect with their respective obligations under this Section 8.11 and such breach has been the ongoing operations material cause of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closingbeing obtained.
Appears in 1 contract
Samples: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
Debt Financing. The Company and Parent agree (i) Prior to the Closing Date, the Company shall use their its commercially reasonable best efforts to provide, and shall cause each Subsidiary of the Company to use their its commercially reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercisethe Parent Parties, in each case at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provideParent’s sole expense, all customary cooperation reasonably requested in writing by the lenders under the Debt Financing and/or Investors Parent (e-mail being sufficient) in connection with the arrangement offering, arrangement, syndication, consummation or issuance of any financing with respect to the Acquired Companies and the Company Properties effective as of or after the Partnership Merger Effective Time (the “Debt Financing, ”) (provided that nothing in this clause (ii) shall require such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the followingany of its Affiliates), including using commercially reasonable efforts to:
(a1) participating (upon reasonable notice, direct employees of the Acquired Companies with appropriate seniority and expertise of the Company to participate as possible) at in a reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions number of meetings (including one-on-one meetings or conference calls with rating agencies, and otherwise cooperating with the marketing efforts for any providers of the Debt Financing), drafting sessions, road shows, rating agency presentations and due diligence sessions and other syndication activities and presentations with prospective lenders at reasonable times and locations mutually agreed; provided, that any such meeting or communication may be conducted virtually by videoconference or other media;
(b2) assisting the lenders under the Debt Financing and/or the Investors (in connection provide reasonable and customary assistance to Parent with the arrangement of the Debt Financing) with the timely preparation of customary: (1) customary offering documents, offering memoranda, syndication materials, information memoranda, lender presentations, materials for rating agency presentations, private placement memoranda, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (documents reasonably necessary in connection with the arrangement of the Debt Financing) in connection Financing and provide reasonable cooperation with the preparation and registration due diligence efforts of any pledge source of any Debt Financing to the extent reasonable and security documentscustomary; in each case in this clause: (A) subject to customary confidentiality provisions and disclaimers; (B) as reasonably requested by Parent; and (C) limited to information to be contained therein with respect to the Acquired Companies;
(3) furnish Parent, currency or interest hedging arrangements reasonably promptly upon written request, with such historical and projected financial, statistical and other definitive financing documents pertinent information relating to the Acquired Companies as may be reasonably requested by Parent, as is usual and customary for Debt Financings and reasonably available and prepared by or for the lenders under Acquired Companies in the ordinary course of business;
(4) assist with the preparation of customary definitive loan documentation contemplated by the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports schedules), including any customary guarantee, pledge and security documents (provided that any such documents or agreements and any obligations contained in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, such documents shall be effective no earlier than as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt FinancingPartnership Merger Effective Time)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d5) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing provide to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters Parent upon written request all documentation and other cooperation in connection information with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior respect to the Closing Date;
(g) delivering notices of prepayment within the time periods Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts PATRIOT Act in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangementsin each case as reasonably requested by Parent;
(i6) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (cooperate in connection with the arrangement repayment or defeasance of any existing Indebtedness of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior Acquired Companies as of, and subject to occurrence of, the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by release of related Liens following the repayment in full of such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoingIndebtedness, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use including using commercially reasonable efforts to cause deliver such customary payoff, defeasance or similar notices within the time periods contemplated under any existing loans of the Acquired Companies as are reasonably requested by Parent (provided, that the Company shall not be required to be satisfied all conditions deliver any notices that are not conditioned on, and subject to fund the occurrence of, the Closing);
(7) cooperate with obtaining customary title insurance with respect to each material Company Property as reasonably requested by Parent;
(8) provide reasonable and customary assistance with respect to attempting to obtain any third-party consents associated with the delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Debt Financing. The Company hereby ;
(9) cause the Company’s independent auditors to deliver customary “comfort letters” and customary consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) accountants’ audit reports in connection with the Debt Financing so long as Financing;
(10) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing;
(11) consent to the use of the Acquired Company’s logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to to, nor reasonably likely to to, harm or disparage the Company or the Acquired Company’s reputation or goodwill goodwill;
(12) reasonably cooperate with the marketing efforts of Parent and its financing sources for any Debt Financing to be raised by Parent to complete the Mergers and the other transactions contemplated by this Agreement;
(13) as may be reasonably requested by Parent, following the obtainment of the Stockholder Approval, form new direct or indirect Wholly Owned Company Subsidiary pursuant to documentation reasonably satisfactory to Parent and the Company;
(14) as may be reasonably requested by Parent, and no earlier than immediately prior to the Partnership Merger Effective Time on the Closing Date, and provided such actions would not adversely affect the Tax status of the Company or any of its marks Subsidiaries or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
(k) No lender under the Debt Financing will have any liability to cause the Company or any of its Affiliates Subsidiaries to be subject to additional Taxes or otherwise suffer or incur any amounts that are not indemnified by Parent under Section 7.12(a)(iii), transfer or otherwise restructure its ownership of existing Subsidiaries of the Company, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company;
(15) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, attempt to obtain estoppels and certificates from non-residential tenants, lenders, managers, franchisors, ground lessors, ground lessees and counterparties to reciprocal easement agreements, declarations and similar agreements in form and substance reasonably satisfactory to any potential financing source;
(16) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, provide customary and reasonable assistance to allow Parent and its Representatives to conduct customary appraisal and non-invasive environmental and engineering inspections of each Owned Company Property and, subject to obtaining required third-party consents with respect thereto (which the Company shall use reasonable efforts to obtain to the extent reasonably requested by Parent and required in connection with such inspections), Leased Company Property (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, (B) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 7.2, and (C) the Company shall be entitled to have representatives present at all times during any such inspection); and
(17) to the extent necessary or advisable, reasonably cooperate to facilitate, effective no earlier than the Closing, the execution and delivery of definitive financing, pledge, security and guarantee documents reasonably requested by Parent and required in connection with the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing.
(ii) The Company shall have satisfied its obligations set forth in Section 7.12(a)(i) if the Company shall have used its commercially reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. Notwithstanding the foregoing, the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under Section 7.12(a)(i) to the extent that it: (i) unreasonably interferes with the ongoing business of the Acquired Companies; (ii) requires the Acquired Companies to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Debt Financing prior to the Closing (except those fees, expenses and liabilities for which the Company is reimbursed by Parent); (iii) requires the Acquired Companies or their respective directors, trustees, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing (other than with respect to customary authorization letters with respect to bank information memoranda) or adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, in each case which is not contingent upon the Closing or would be effective at or prior to the Partnership Merger Effective Time; (iv) requires the Acquired Companies or their counsel to give any legal opinion; (v) requires the Acquired Companies to provide any information that is prohibited or restricted by applicable Law; (vi) requires the Acquired Companies to provide access to or disclose information that the Company or any of its Subsidiaries determines would result in a loss or waiver of or jeopardize any attorney-client privilege, attorney work product or other legal privilege (provided, that the Company Parties shall use reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in this clause (vi)); (vii) requires the Acquired Companies to take any action that is prohibited or restricted by, or would conflict with or violate, its organizational documents, or would result in a violation or breach of, or default under, any Material Contract to which any of the Acquired Companies is a party or any applicable Laws; (viii) would result in any officer or director of the Acquired Companies incurring personal liability with respect to any matter relating to or arising out of this Agreement, the Debt Financing or otherwiserequires any officer, whether at law director or equity, in contract, in tort or otherwise. Neither other Representative of the Company nor any of its Affiliates will have any liability to the lender or any of its Subsidiaries to deliver any certificate that such officer, director or other Representative reasonably believes, in good faith, contains any untrue certifications or (ix) requires the Acquired Companies or their Representatives, as applicable, to waive or amend any terms of this Agreement. In no event shall the Company Parties be in breach of this Agreement because of the failure to deliver any financial or other information that (A) is not currently readily available to the Acquired Companies on the date hereof and is not otherwise prepared in the ordinary course of business of Acquired Companies at the time requested by Parent or (B) for the failure to obtain review of any financial or other information by its accountants after using commercially reasonable efforts to obtain the same. In no event shall the Acquired Companies be required to pay any commitment or other fee or give an indemnity or incur any liability (including due to any act or omission by the Company, its Subsidiaries or any of their respective Affiliates relating to or arising out Representatives) or expense (including legal and accounting expenses) in connection with assisting the Parent Parties in arranging the Debt Financing or otherwiseas a result of any information provided by the Company, whether at law its Subsidiaries or equity, any of their respective Affiliates or Representatives in contract, in tort or otherwise.
(l) Notwithstanding anything connection with the Debt Financing prior to the contrary Partnership Merger Effective Time (except those fees, expenses, financial commitments or other financial obligations for which the Company is reimbursed by Parent). None of the representations, warranties or covenants of the Company Parties set forth in this AgreementAgreement shall be deemed to apply to, none or deemed breached or violated by, any of the actions taken by the Company, any of the Company Subsidiaries Subsidiaries, or any of its or their respective directors or officers or other personnelRepresentatives at the request of Parent pursuant to Section 7.12. For the avoidance of doubt, shall be required by the Parties hereto acknowledge and agree that the provisions contained in this Section 7.15 7.12(a)(ii) represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to take any action or provide any assistance that unreasonably interferes cooperation in any material respect connection with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the ClosingDebt Financing.
(miii) Notwithstanding anything Parent shall reimburse the Acquired Companies promptly upon demand for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ and accountants’ fees) (other than in this Agreement respect of the preparation of customary historical financials) incurred by the Acquired Companies and its Representatives in connection with the cooperation under Section 7.12, any action taken by them at the request of Parent pursuant to Section 7.12 (including the contrarydissolution and termination of any subsidiaries formed and documentation entered into pursuant to Section 7.12), none and shall indemnify and hold harmless the Acquired Companies and their Representatives and each of the Acquired Companies’ and their Representatives’ respective present and former directors, officers, employees and agents (collectively, the “Financing Indemnified Parties”) from and against any and all out-of-pocket costs, expenses, losses, damages, claims, judgments, fines, penalties, interest, settlements, awards and liabilities suffered or incurred by any of them in connection with the arrangement and consummation of the Debt Financing and any information used in connection therewith (other than the information provided in writing by the Company or the Company Subsidiaries other Acquired Companies to Parent specifically in connection with their obligations pursuant to Section 7.12(a)). The provisions of this Section 7.12(a)(iii) are intended to be for the benefit of, and shall be required enforceable by, each of the foregoing Financing Indemnified Parties. This Section 7.12(a)(iii) shall survive the termination of this Agreement (and in the event the Mergers and the other transactions contemplated hereby are not consummated, Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by the Company and its Subsidiaries in connection with the cooperation under Section 7.12, and not previously reimbursed).
(iv) All confidential information regarding the Acquired Companies obtained by the Parent Parties and their respective Affiliates and Representatives pursuant to (a) pay any commitment or other similar feeSection 7.12 shall be kept confidential in accordance with the Confidentiality Agreement. For the avoidance of doubt, including under any guarantee or pledge without the prior written consent of the Company, in no event will the Parent Parties or any other document relating of their respective Affiliates (which for this purpose will be deemed to include each direct investor in the Debt Financing prior to the Closing or (bParent Parties) enter into any binding agreement or commitment agreement, arrangement or any resolution other understanding, whether written or oral, with any potential source of Debt Financing that would reasonably be expected to limit, restrict, restrain, otherwise take impair in any corporate manner, directly or similar action with respect indirectly, the ability of such source of Debt Financing to provide Debt Financing or other assistance to any other party in any other transaction involving the Acquired Company (provided that the foregoing shall not prohibit the establishment of customary “tree” arrangements).
(v) Prior to the Closing Date, upon the request of the Company, Parent shall keep the Company reasonably informed in reasonable detail of the status of its efforts to arrange the Debt Financing. The Parent Parties acknowledge and agree that the obtaining of the Debt Financing that, in each case, is not conditioned on a condition to Closing and that the occurrence consummation of the Closingtransactions contemplated by this Agreement shall not be conditioned on, or delayed or postponed as a result of the obtaining (or the failure to obtain) the Debt Financing.
Appears in 1 contract
Samples: Merger Agreement (Preferred Apartment Communities Inc)
Debt Financing. The Company (a) Tyler acknowledges that it shall be fully responsible for obtaining the Debt Financing and Parent agree (i) to shall use their reasonable best efforts to providearrange and obtain the Debt Financing on the terms and subject only to the conditions described in the Financing Letter.
(b) Subject to Section 7.2, and to NWS shall use their its reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors cooperate in connection with the arrangement of the Debt FinancingFinancing as may be reasonably requested by Tyler, provided that nothing including (i) participation in this clause meetings, drafting sessions, presentations, road shows, and due diligence, (ii) shall require furnishing Tyler and the Company or Parent financing sources with financial and other pertinent information regarding NWS as may be reasonably requested by Tyler to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to consummate the following:
(a) participating (with appropriate seniority Debt Financing, including all financial statements and expertise financial data of the Company to participate as possibletype required by Regulation S-X and Regulation S-K under the Securities Act (other than Rule 3-10 of Regulation S-X), (iii) at reasonable timesassisting Tyler and the financing sources in the preparation of informational and marketing materials and documents for any portion of the Debt Financing, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions with rating agencies, and otherwise (iv) reasonably cooperating with the marketing efforts of Tyler and the financing sources for any portion of the Debt Financing;
, (bv) assisting reasonably facilitating the lenders under identification of collateral, (vi) reasonably facilitating the provision of information for disclosure schedules and closing deliverables, in each case as customarily provided to lenders, and (vii) obtaining accountants’ comfort letters, accountants’ consent letters, legal opinions, surveys, and title insurance as reasonably requested by Tyler; provided, however, that Tyler shall pay (and, to the extent practicable, in advance) any out-of-pocket costs or expenses incurred in connection therewith (including, any commitment or other fee or incur any other liability in connection with the Debt Financing and/or prior to the Investors (Effective Time); and, provided further, that such requested cooperation does not unreasonably interfere with the ongoing operations of NWS. Tyler shall, promptly upon request by NWS, reimburse NWS for all reasonable out-of-pocket costs incurred by NWS in connection with such cooperation. Tyler shall indemnify and hold harmless NWS from and against any and all Losses suffered or incurred by NWS in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank Financing and any information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required utilized in connection therewith;.
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing CommitmentLetter, the Company Tyler shall provide, and shall seek use its reasonable best efforts to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining promptly obtain alternative financing from alternative sources.
(k) No lender under in an amount, together with cash of Tyler on the Debt Financing will have any liability Closing Date, sufficient for Tyler to pay the Company or any of its Affiliates relating Total Cash Consideration and to or arising out of this Agreement, consummate the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither Merger and the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required transactions contemplated by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with Agreement on the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything terms set forth in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closingan “Alternative Financing”).
Appears in 1 contract
Debt Financing. The Without in any way limiting any of the parties’ obligations under Section 6.6:
(a) Prior to the Closing, the Company and Parent agree (i) to use their reasonable best efforts to provideshall, and to shall cause its Subsidiaries to, and shall use their commercially reasonable best efforts to cause their the respective officers, directors, employees, financial consultants and advisors, counselincluding legal and accounting advisors, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the InvestorsCompany and its Subsidiaries to, their rights under the Porsche Merger Agreement provide to seek compliance by Porsche with its obligations to provide, Parent all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors Parent in connection with satisfying the conditions precedent contained in the Debt Commitment Letters and the arrangement of the Debt Financing, provided that nothing including, without limitation, (i) participation in this clause a reasonable number of meetings, presentations and due diligence and drafting sessions, (ii) shall require providing reasonable assistance with the Company or Parent preparation of materials for lender meetings, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing, (iii) using commercially reasonable efforts to commence a Proceeding against Porsche. Such cause its independent accountants to provide assistance and cooperation shall include to Parent, including but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise in a reasonable number of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, presentations, accounting due diligence sessions, and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed providing consent to require Parent to use their audit reports relating to the Company to prepare such forecasts of financial statements)and providing any necessary “comfort letters,” (iv) executing and delivering definitive financing documents, in each caseincluding pledge, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge guaranty agreements and security documents, currency or interest hedging arrangements documents and other definitive financing certificates or documents (including interest rate hedging agreements) as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing))Parent, and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement Debt Financing immediately prior to the Effective Time; provided that no obligation of the Debt Financing)Company or any of its Subsidiaries under any such agreement, document or pledge shall be effective until the Effective Time, (v) providing reasonable access to the books and records, officers, directors, agents and Representatives of the Company and its Subsidiaries, (vi) using commercially reasonable efforts to obtain surveys, title insurance and non-invasive environmental assessments reasonably requested by Parent, (vii) as promptly as practicable, with using commercially reasonable efforts to furnish to Parent and its Financing Sources all financial and other pertinent information regarding the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary Company and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as its Subsidiaries reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior Parent, to the Closing Date;
(g) delivering notices of prepayment extent within the time periods required by Company’s custody or control, including all information and data necessary to satisfy the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at conditions set forth in the ClosingDebt Commitment Letters, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts each case subject to confidentiality agreements reasonably requested by the Company, (viii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements in connection with the Debt Financing, Financing and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing; provided that no right of any lender, nor any obligation of the recipients Company or any of such information agree to customary confidentiality arrangements;
its Subsidiaries, thereunder shall be effective until the Effective Time, (iix) taking all corporate and other actions actions, subject to the occurrence of the Closing, reasonably requested by the lenders under the Debt Financing Parent to permit the consummation of the Debt Financing; and
(j) if requested by Financing and the Investors (in connection with direct borrowing or incurrence of all of the arrangement proceeds of the Debt Financing, including any high yield debt financing, by the Company immediately following the Effective Time, (x) obtaining customary payoff letters, lien releases and terminations and instruments of discharge to be delivered at Closing, provided that no such payoff letter, lien releases or lenders under terminations or instruments shall be effective until the Debt Effective Time, and (xi) furnishing Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing Sources as promptly as practicable with all documentation and other information about which any lender providing or arranging the Company and the Company Subsidiaries and Affiliates as is Debt Financing has reasonably requested and that such lender has determined is required by such lenders relating to Governmental Entities in connection with the Debt Financing under applicable “know your customer” and anti-money laundering and any other applicable governmental rules and regulations. Without limiting regulations including, without limitation, the generality USA PATRIOT Act; provided, that nothing herein shall require such cooperation to the extent it would unreasonably interfere with the business or operations of the foregoingCompany or its Subsidiaries, or otherwise result in any significant interference with the prompt and timely discharge by the Company’s or any of its Subsidiaries’ personnel of their normal duties; provided further that neither the Company and nor any of its Subsidiaries shall comply, and shall seek be required to have Porsche and its Subsidiaries comply, with the covenants applicable to pay any of them set forth in the Porsche Merger Agreement commitment fee or similar fee or incur any Liability with respect to the Debt FinancingFinancing prior to the Effective Time or which is not subject to the occurrence of the Closing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund documented out-of-pocket costs and expenses incurred by the Debt FinancingCompany or any of its Subsidiaries in connection with any cooperation provided under this Section 6.17. The Company hereby consents to the reasonable use of its and its Subsidiaries’ logos (without granting to any person any rightas may be reasonably necessary, title or interest therein except for as reasonably determined by the limited rights expressly provided in this sentence) Financing Sources, in connection with arranging and providing the Debt Financing so long as 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 marks Subsidiaries and its or their marks.
(b) Subject to the provisions of Section 6.17(c), Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letters, including, without limitation, using reasonable best efforts to (i) maintain in effect the Debt Commitment Letters on the terms and conditions described therein, negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions reflected in the Debt Commitment Letters or on other terms as would not reasonably be expected to materially impede the ability of Parent and Merger Sub to timely consummate the transactions contemplated by this Agreement in accordance with the terms hereof and applicable Legal Requirements; (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub set forth in the Debt Commitment Letters and such definitive agreements that are within their control, (iii) consummate the Debt Financing at or prior to the Closing, (iv) comply with its obligations under the Debt Commitment Letters, and (v) enforce its rights under the Debt Commitment Letters.
(c) Parent shall keep the Company Intellectual Property Rightsreasonably informed on a reasonably current basis and in reasonable detail of the status of the Debt Financing and provide to the Company copies of all executed definitive documents related to the Debt Financing. If Without limiting the generality of the foregoing, Parent shall give the Company prompt (and in any event within one (1) Business Day) written notice: (i) of any default or breach (or any event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any default or breach) by any party to any Debt Commitment Letter or definitive Contract related to the Debt Financing of which Parent has knowledge or becomes aware; (ii) of the receipt of any written notice from any party to a Debt Commitment Letter with respect to any (x) actual or potential default, breach, termination or repudiation by such party of a Debt Commitment Letter or any definitive Contract related to the Debt Financing; and (iii) if for any reason Parent has definitively determined that it will not be able to obtain all or any material portion of the Debt Financing on the terms and conditions, in the manner or from the Financing Sources contemplated by the Debt Commitment Letters. As soon as reasonably practicable, but in any event within two (2) Business Days after the date that the Company delivers Parent a written request therefor, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in any of the foregoing clauses (i) through (iii) above. Parent shall not enter into, make, or cause or permit to be made any amendment or modification to a Debt Commitment Letter that amends or modifies the conditions precedent to the Debt Financing in any manner that would reasonably be expected to delay or prevent the Closing from occurring on a timely basis, or make the funding of the Debt Financing materially less likely to occur. Parent shall provide the Company with a copy of any amendment or modification to a Debt Commitment Letter promptly after the same is entered into. Subject to the terms and conditions of this Agreement, in the event that any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing CommitmentCommitment Letters, Parent shall immediately notify the Company shall providethereof, and shall seek promptly following the occurrence of such event use its reasonable best efforts to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining arrange to (A) obtain alternative financing from alternative sources.
(k) No lender under the Debt Financing will have any liability in an amount at least equal to the Company or any amount of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwisesuch unavailable portion thereof, whether at law as the case may be, or equitysuch lesser amount, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect together with the ongoing operations available cash of the Company and the Company Subsidiaries available cash on hand of Parent and its Subsidiaries, as is sufficient for Parent and Merger Sub enable Parent to pay the aggregate Merger Consideration and the aggregate Option Merger Consideration, to consummate the Merger upon the terms contemplated by this Agreement and to pay all related fees and expenses associated therewith) from alternative sources (“Alternative Financing”), on terms that are substantially comparable, in the aggregate, to those contained in the Debt Commitment Letters, and (B) obtain a new financing commitment letter or letters with respect to execute or deliver any certificatesuch Alternative Financing (collectively, documentthe “Alternative Debt Commitment Letters”), instrument or agreement that is effective prior which shall replace the existing Debt Commitment Letters, a true, complete and correct copy of each of which Parent shall promptly provide to the Closing or agree to Company. In the event that any change or modification of Alternative Debt Commitment Letter is obtained, (1) any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything reference in this Agreement to the contrary“Debt Financing” shall mean the debt financing contemplated by the Debt Commitment Letters as modified by the Alternative Commitment Letters, none of and (2) any reference in this Agreement to the “Debt Commitment Letters” shall be deemed to include the Debt Commitment Letters to the extent not superseded by Alternative Debt Commitment Letters at the time in question and the Alternative Debt Commitment Letters to the extent then in effect. Parent shall keep the Company or reasonably apprised as to the Company Subsidiaries shall be required to (a) pay status of, and any commitment or other similar feematerial developments relating to, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into and, if applicable, any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the ClosingAlternative Financing.
Appears in 1 contract
Samples: Merger Agreement (Answers CORP)
Debt Financing. The Company and Parent agree (i) Parent shall keep the Company (on behalf of the Sellers) informed of the status of its efforts to arrange any Debt Financing (including providing the Company (on behalf of the Sellers) with copies of draft and definitive agreements and other documents related to such Debt Financing reasonably requested by the Sellers, subject to the terms of applicable confidentiality undertakings). Each of Parent and EuCo shall, and shall cause each of its Affiliates to, use its reasonable best efforts to (i) consult with the Sellers and their Representatives in connection with the timing, marketing and syndication of any Debt Financing and the negotiation of the definitive agreements with respect to any Debt Financing, and (ii) provide the Company (on behalf of the Sellers) and its Representatives with a reasonable opportunity to review and comment on any financing documents (and drafts thereof, including fee letters) in connection with any Debt Financing; provided, however, that neither Parent nor EuCo shall in any event be required to see that any such additions, deletions or changes are incorporated in the definitive versions of such financing documents.
(ii) The Sellers shall direct and shall cause the Acquired Companies to, at Parent’s sole cost and expense, use their reasonable best efforts to provide, cooperate with the Buyers and to use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other authorized Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors in connection with the arrangement of the any Debt Financing, provided that nothing in this clause including (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(aA) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon on reasonable advance notice, in meetingsa reasonable number of meetings and at reasonable locations, with respect to drafting sessions, presentations, due diligence sessionsroad shows, and sessions with rating agenciesagencies and due diligence, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(bB) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of furnishing such financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents information as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports Buyers in any materials relating to the connection with such Debt Financing and accountants’ comfort letters(C) providing assistance in respect of the preparation of any underwriting or placement agreements, informational and marketing materials, and pledge and security documents and other definitive financing documents; provided, that, in each caseof (A) through (C), (w) any private placement memoranda, offering memoranda or prospectuses need not be issued by any Acquired Company prior to the Closing Date, (x) no member of the Seller Group shall be required to become subject to any obligations or liabilities with respect to such agreements or documents, (y) no Acquired Company shall be required to become subject to any obligations or liabilities with respect to such agreements or documents prior to the Closing Date and (z) nothing shall obligate (1) any member of the Seller Group to provide a solvency certificate or any similar certificate, to declare or make any determinations with respect to any dividends or to provide any information that would violate any applicable obligations of confidentiality or result in a violation of applicable Law or loss of any privilege or (2) any Acquired Company to provide a solvency certificate or any similar certificate, to declare or make any determinations with respect to any dividends or to provide any information that would violate any applicable obligations of confidentiality or result in a violation of applicable Law or loss of any privilege. Any information provided to the Buyers pursuant to this Section 6.11(b)(ii) shall be subject to the Confidentiality Agreement. Parent shall promptly reimburse the Sellers for all reasonable out-of-pocket costs and expenses incurred by such members of the Seller Group and the Acquired Companies in connection with such cooperation. The Company (on behalf of the Sellers) and its Representatives shall be given a reasonable opportunity to review and comment on any financing documents (and drafts thereof, including fee letters) and any materials that are to be presented during any meetings conducted in connection with any Debt Financing at which they are present, and Parent shall give due consideration to all reasonable additions, deletions or changes suggested by the Company (on behalf of the Sellers) and its Representatives with respect to the financing documents; provided, however, that neither Parent nor EuCo shall in any event be required to see that any such additions, deletions or changes are incorporated in the definitive versions of such financing documents. The Buyers acknowledge and agree that no member of the Seller Group or any of their respective Affiliates and Representatives shall have any responsibility for, or incur any liability to any Person under or in connection with, the arrangement of any Debt Financing that Parent or EuCo may raise in connection with the Transactions unless attributable to their gross negligence or a material breach of their obligations under this Section 6.11(b)(ii). Notwithstanding anything to the contrary herein, the condition set forth in Section 9.2(b), as reasonably requested by it applies to the lenders Sellers’ obligations under the this Section 6.11(b)(ii), shall be deemed satisfied unless any Debt Financing and/or has not been obtained primarily as a result of the Investors (Sellers’ gross negligence or willful and material breach of its obligations under this Section 6.11(b)(ii). Parent and EuCo shall, on a joint and several basis, indemnify and hold harmless the members of the Seller Group and the Acquired Companies, their Subsidiaries and their respective Representatives from and against any and all Damages suffered or incurred by them in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the any Debt Financing and/or the Investors (and any information utilized in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior therewith unless attributable to the Closing Date;
(g) delivering notices Sellers’ gross negligence or willful and material breach of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders their obligations under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sourcesSection 6.11(b)(ii).
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(liii) Notwithstanding anything to the contrary contained herein, in this Agreementthe event Parent or its Affiliate provides (or irrevocably commits in writing to provide) funds sufficient to satisfy the ABL European Obligations and the Liz Obligations (or, none in the case of the CompanyLiz Obligations, any such obligations are otherwise satisfied pursuant to Section 2.4(i)), (A) Parent shall have no obligations under Section 5.7 and this Section 6.11 (other than the final sentence of the Company Subsidiaries or any of its or their respective directors or officers or other personnelSection 6.11(b)(ii)), and such provisions shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing thatdisregarded, in each case, is not conditioned on case to the occurrence of extent related to any Debt Financing and (B) the ClosingSellers shall have no obligations under this Section 6.11.
Appears in 1 contract
Samples: Merger Agreement (Claiborne Liz Inc)
Debt Financing. (a) The Company and Parent agree (i) to Parties shall use their reasonable best efforts to provide, arrange debt financing to support the Transaction (the “Debt Financing”) on terms as determined by the Sponsor in consultation with the Senior Management Member Representative. The Parties shall work together and to use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants cooperate in good faith in connection with arranging the Debt Financing. The Sponsor shall take the lead in identifying and selecting banks and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors financing sources in connection with the arrangement of Debt Financing (the Debt Financing, provided “Financing Banks”) and will consider in good faith potential Financing Banks proposed by the Senior Management Member Representative that nothing have offered superior financing terms and rates to support the Transaction. Each other Party shall provide such assistance in this clause (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (connection with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(b) assisting the lenders under arranging the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under Sponsor.
(b) To the Debt extent legally permissible, each of the Parties shall (i) furnish the Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating Banks, as promptly as reasonably practicable, with financial, know-your-client and other information relevant to the Debt Financing financial condition, business, operations and accountants’ comfort letters, in each caseassets of the Target, as may be reasonably requested by the lenders under Financing Banks to consummate the Debt Financing and/or the Investors (in connection with the arrangement of facilities contemplated by the Debt Financing)), and otherwise reasonably facilitating the pledging of collateralsubject to appropriate confidentiality undertakings, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(dii) furnishing the lenders under the Debt Financing and/or the Investors (in connection assist with the arrangement preparation of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow materials for the payoff, discharge Financing Banks information memoranda and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts similar documents required in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangements;
and (iiii) taking take all corporate and other actions reasonably requested by the lenders under the Debt Financing Banks to permit the consummation of the Debt Financing; , including the facilitation of the pledging of collateral and
(j) if , in connection therewith, executing and delivering any pledge and security documents, other definitive financing documents or certificates, or other documents as may be requested by the Investors Financing Banks, provided that (in connection with the arrangement of the Debt FinancingA) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided nothing in this sentence) Section 1.05 shall be construed to create any obligation on the part of any Party to pledge any collateral in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage and (B) the Company or the reputation or goodwill obligations of the Company or Parties under this Section 1.05(b) shall be subject to (x) any of its marks limitations or other Company Intellectual Property Rights. If any portion of requirements that may be imposed by the Debt Financing becomes unavailable on Special Committee, (y) the terms and conditions contemplated to be set forth in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors Merger Agreement or any confidentiality agreements entered into in connection with obtaining alternative financing from alternative sources.
the Transaction and (kz) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none fiduciary duties and other obligations of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the ClosingSenior Management Members under applicable laws.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closing.
Appears in 1 contract
Samples: Consortium Agreement (Pactera Technology International Ltd.)
Debt Financing. The (a) From the date hereof until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 13.01, Arsenal Blocker Seller and the Company and Parent agree (i) to shall use their commercially reasonable best efforts to providepromptly provide to Buyer, and to shall use their commercially reasonable best efforts to promptly cause their Arsenal Blocker Seller's and the Company's respective officers, directors, employees, financial advisorsrepresentatives and advisors to promptly provide to Buyer, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request such cooperation as is customary for debt financings of the Investors, their rights under type contemplated by the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all cooperation Debt Commitment Letter and as is reasonably requested by the lenders under the Debt Financing and/or Investors Buyer in connection with the arrangement of arranging and obtaining the Debt Financing, provided that nothing in this clause including (iii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the Debt Financing;
(b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, furnishing Buyer, its Affiliates and its financing sources with the Required Financing Information;
, (eii) cooperating using commercially reasonable efforts in assisting Buyer with the lenders under the Debt Financing to obtain preparation of customary offering documents, financial statements, pro formas, or any other financial information and reasonable corporate materials, including prospectuses, private placement memoranda, information memoranda and facilities ratingspackages, consentslender and investor presentations, landlord waivers rating agency presentations, and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys similar documents and title insurance as materials reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts Buyer in connection with the Debt Financing, provided that the recipients of such information agree no financial statements shall be required to customary confidentiality arrangements;
(i) taking all corporate and be prepared other actions reasonably requested than those customarily prepared by the lenders under Company, (iii) facilitating the Debt Financing to permit pledging of collateral (which shall only be effective at the consummation of the Debt Financing; and
Closing), (jiv) if requested by the Investors (cooperating in connection with the arrangement pay-off of existing Funded Debt to the Debt Financingextent contemplated by this Agreement and the release of related Liens and termination of security interests, including obtaining customary payoff letters, lien releases and instruments of discharge or releases to be delivered at the Closing, (v) or lenders under the Debt Financing providing at least three five (35) Business Days prior to the Closing Date all documentation and other information about the Company as is required by applicable "know your customer" and anti-money laundering rules and regulations including the USA Patriot Act provided such information was requested at least ten (10) Business Days prior to the Closing Date, within (vi) upon reasonable notice and at reasonably convenient times and locations making the officers or other senior management available to participate in a reasonable time furnishing the lenders under the Debt Financing with all documentation number of meetings and other information about presentations, including lender and rating agency presentations, drafting sessions and due diligence sessions and (vii) delivering unaudited financial statements of the Company and for each fiscal month within 30 days after the Company Subsidiaries and Affiliates as is reasonably requested by end of such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth month in the Porsche Merger Agreement form customarily prepared by the Company; provided, however, that (A) neither the Company, nor its respective officers, directors or employees shall be required to execute or enter into or perform any agreement with respect to the Debt FinancingFinancing that is not contingent upon the Closing or that would be effective prior to the Closing, and (B) no counsel for Arsenal Blocker Seller or the Company shall use commercially reasonable efforts be obligated to cause to be satisfied all conditions to fund deliver any opinion in connection with the Debt Financing. , (C) no director, manager or member of Arsenal Blocker Seller or the Company in their capacities as such shall be required to pass resolutions or consents or approve or authorize the execution of any documents in connection with the Debt Financing, (D) no Person shall be required to to participate in any meetings, presentations, drafting sessions or due diligence sessions to the extent such participation would unreasonably interfere with such Person's continuing duties with the Company and its Subsidiaries, (E) none of Arsenal Blocker Seller or the Company shall be obligated to deliver any financial statements that are not customarily prepared by the Company, (F) no officer of Arsenal Blocker Seller or the Company shall be obligated to deliver a solvency certificate, and (G) neither Arsenal Blocker Seller nor the Company shall be required to deliver or cause the delivery of any accountant or cold comfort letter.
(b) Buyer shall promptly, upon request by the Representative, indemnify, hold harmless and reimburse Arsenal Blocker Seller or the Company for all reasonable and documented out-of-pocket costs and expenses incurred by Arsenal Blocker Seller or the Company in connection with the cooperation of Arsenal Blocker Seller and the Company contemplated by this Section 6.08.
(c) The Company hereby consents to the reasonable use of its all of their trademarks, service marks and logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with purposes of the Debt Financing so long as Financing; provided that, such trademarks, service marks and logos are used solely in a manner that is not intended to nor or reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company Company.
(d) From the date hereof until the earlier of the Closing Date or five (5) Business Days after the termination of this Agreement pursuant to Section 13.01:
(i) Subject to the terms and conditions of this Agreement, Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable, all things necessary, proper or advisable to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter (including any "market flex" provisions in the Debt Commitment Letter), including: (A) maintaining in effect the Debt Commitment Letter until the funding of the Debt Financing at the Closing; (B) satisfying (or obtaining a waiver thereof) and causing to be satisfied all conditions applicable to Buyer to obtaining the Debt Financing and otherwise complying with its obligations under the Debt Commitment Letter and the definitive documents relating to the Debt Financing; (C) entering into definitive agreements with respect to the Debt Financing; (D) enforcing its rights under the Debt Commitment Letter; and (E) consummating the Debt Financing at or prior to the Closing (it being understood that it is not a condition to Closing under this Agreement for Buyer to obtain the Debt Financing or any of its marks Alternative Financing).
(ii) Buyer shall not permit any assignment, amendment, supplement, replacement, restatement, waiver, substitution, or other modification (and any Alternative Financing shall be deemed an assignment, amendment, supplement, replacement, restatement, waiver, substitution, or other modification that is subject to the requirements of this Section 6.08(d)(ii) of any Debt Commitment Letter or any definitive agreement related to the Debt Financing, in each case, without the Representative's prior written consent, if such assignment, amendment, supplement, replacement, restatement, waiver, substitution, or other modification (A) reduces the aggregate amount of the Debt Financing such that Buyer or the Company Intellectual Property Rightswould not have aggregate proceeds necessary to complete the transaction, (B) imposes new or additional conditions or otherwise materially and adversely expands, amends or modifies any of the conditions to the receipt of the Debt Financing at the Closing Date, (C) could reasonably be expected to (1) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) or the consummation of the Transactions materially less likely to occur or (2) impair, delay or prevent in any material respect the availability on the Closing Date of all or a portion of the Debt Financing contemplated by the Debt Commitment Letter to be funded on the Closing Date or (D) otherwise materially and adversely affects the ability of Buyer to enforce its rights under the Debt Commitment Letter or to consummate the transactions contemplated by this Agreement; provided, that without the consent of the Representative, Buyer may (x) correct typographical errors, (y) provide for the assignment of a portion of the commitments or obligations under the Debt Commitment Letter to additional agents, arrangers, lenders, bookrunners, syndication agents or similar entities or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto (including replacement of a lender) or (z) implement or exercise any of the "market flex" provisions contained in the Debt Commitment Letter. If Upon any such assignment, amendment, supplement, replacement, restatement, waiver, substitution, or other modification of the Debt Commitment Letter in accordance with this Section 6.08, (i) Buyer shall promptly provide complete, correct and executed copies of the same (which shall include any documentation related to any Alternative Financing) to the Representative (including complete, correct and executed copies of all related fee letters, engagement letters, side letters, agreements, contracts and other arrangements) and (ii) the term "Debt Commitment Letter" shall mean the Debt Commitment Letter as so amended, supplemented or modified.
(iii) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions described in or contemplated in by the Debt Financing CommitmentCommitment Letter (including the "market flex" provisions thereof), Buyer shall use its reasonable best efforts to, as promptly as practicable following the Company shall provideoccurrence of such event (but not later than the date Buyer is required to consummate the Closing pursuant to Section 3.01), arrange to obtain, negotiate and shall seek to have Porsche and its officersenter into definitive agreements with respect to, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
debt sources (kthe "Alternative Financing") No lender under in an amount and on terms sufficient to commence the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required transactions contemplated by this Section 7.15 to take Agreement and not contain any action conditions that would prevent, impede or provide any assistance that unreasonably interferes delay in any material respect with the ongoing operations of Debt Financing. The obligations under this Section 6.08 shall apply equally to any such Alternative Financing (including any new financing commitments) and all references herein and therein to the Company Debt Financing shall be deemed to include such Alternative Financing, all references therein to the Debt Commitment Letter or the definitive documents related to the Debt Financing shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Sources shall include the persons providing or arranging the Alternative Financing.
(iv) Buyer will keep the Representative, Arsenal Blocker Seller and the Company Subsidiaries reasonably informed on a current and timely basis of the status of Buyer's efforts to obtain the Debt Financing and to satisfy the conditions thereof, including advising and updating the Representative, Arsenal Blocker Seller and the Company, in a reasonable level of detail, with respect to status and proposed closing date. Without limiting the foregoing, Buyer shall give the Representative prompt written notice (and in any event within three (3) Business Days) (A) of any written, or the knowledge of Buyer oral, notice by the lenders of a material breach, default, repudiation, cancellation or termination or if any Person attempts or purports to execute terminate, cancel or deliver repudiate the Debt Commitment Letter, whether or not such attempted or purported termination, cancellation or repudiation is valid by any certificate, document, instrument or agreement that is effective prior party to the Closing Debt Commitment Letter or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document definitive documents relating to the Debt Financing prior of which Buyer becomes aware that would reasonably be expected to result in Buyer not receiving the proceeds of the Debt Financing on the Closing Date or any termination of the Debt Commitment Letter, (B) if and when Buyer becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter will not be available to consummate the Transactions to the Closing extent such unavailability would prevent the consummation of the transactions contemplated by this Agreement or (bC) enter into if for any binding agreement reason Buyer believes in good faith that Buyer will not be able to obtain, or commitment there occurs any event or development that could reasonably be expected to materially and adversely impact the ability of Buyer to obtain, all or any resolution portion of the Debt Financing on the terms, in the manner or otherwise take any corporate from the sources contemplated by the Debt Commitment Letter or similar action with respect the definitive documents related to the Debt Financing thatFinancing. As soon as reasonably practicable, in each caseafter the Representative delivers to Buyer a written request, is not conditioned on Buyer shall provide any information reasonably requested by the occurrence Representative relating to any of the Closingcircumstances referred to in this Section 6.08(d).
Appears in 1 contract
Debt Financing. The Company (a) Parent and Parent agree (i) to Merger Sub shall use their respective reasonable best efforts to providetake, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange, consummate and obtain the Debt Financing as promptly as practicable, but in any event on or prior to Closing. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange, consummate and obtain the Debt Financing.
(b) Prior to the Closing or the earlier expiration or termination of the Marketing Period, the Company Entities shall, and to shall use their reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants employees and other Representatives and Affiliates to provide, and (ii) to exerciseto, at the request of the InvestorsParent’s sole cost and expense, their rights under the Porsche Merger Agreement provide customary cooperation to seek compliance by Porsche with its obligations to provide, all cooperation reasonably requested by the lenders under the Debt Financing and/or Investors Parent in connection with the arrangement Debt Financing as may be reasonably requested by Parent, including by:
(i) furnishing Parent and the Debt Financing Sources with the Required Information, any updates to any Required Information as may be necessary for such Required Information to remain Compliant throughout the Marketing Period and such other historical financial information and other pertinent information regarding the Company Entities as may be reasonably requested by Parent and that is customarily needed for 144A-for-life debt offerings;
(ii) participating (and causing senior management and using reasonable best efforts to cause Representatives and advisors to participate) 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 investors with respect to, the Debt Financing, provided that nothing in this clause (ii) shall require the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority and expertise of the Company to participate as possible) at reasonable times, upon reasonable advance notice, in meetings), presentations, road shows, drafting sessions, due diligence sessions, sessions (including using reasonable best efforts to cause its independent auditors to participate therein) and sessions with rating ratings agencies, and otherwise cooperating in each case in connection with the marketing efforts for any of the such Debt FinancingFinancing and with reasonable advance notice and at dates, times and locations as may be mutually agreed;
(biii) upon reasonable prior written notice, assisting the lenders under Parent and the Debt Financing and/or Sources in the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1A) confidential information memoranda, lender presentations and similar marketing documents, (B) investor presentations (including “roadshow” or investor meeting slides), (C) offering memoranda and private placement memoranda (including under Rule 144A) and (D) materials for rating agency presentations, bank in each case, solely to the extent involving information memoranda about the Company Entities;
(iv) executing and similar delivering (or assisting Parent in obtaining from legal counsel (including local counsel) to the Company and their advisors) any customary guarantee, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Xxxxxx and as may be necessary and customary in connection with the Debt Financing (including a solvency certificate of the chief financial officer of the Company) and otherwise facilitating the obtaining of guarantees; (2) memoranda provided, that all such guarantees and similar documentsother documents with respect to the Company Entities and their respective assets shall be authorized and become effective subject to, and only at, or as of, the Closing; and (3) forecasts of financial statements for one or more periods following the Closing Date (whichprovided, further, that, for the avoidance of doubt, will not include or neither any Company Entity nor any counsel to any Company Entity shall be deemed required to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (provide any legal opinion in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(dv) furnishing taking all corporate actions, subject to the lenders under occurrence of the Closing, reasonably requested by Parent that are necessary to permit the consummation of the Debt Financing and/or and to permit the Investors (in connection proceeds thereof, together with the arrangement of cash at the Debt FinancingCompany Entities, if any (not needed for other purposes), as promptly as practicable, with to be made available on the Required Financing InformationClosing Date to consummate the Closing and the other transactions contemplated by this Agreement;
(evi) cooperating with the lenders under providing customary authorization and representation letters to the Debt Financing to obtain customary and reasonable corporate and facilities ratingsSources, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested executed by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation on behalf of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
(g) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff lettersCompany, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investorsinvestors and containing customary representations to the Debt Financing Sources regarding the accuracy and completeness of the information contained therein with respect to the Company and its Subsidiaries and, with respect to any “public version” of such materials, the absence of any material non-public information with respect to the Company and its Subsidiaries therein and that such written factual information (other than customary exceptions), when taken as a whole, to the extent provided by the Company Entities does not contain a material misstatement or omission that would make the statements contained therein materially misleading in light of the circumstances under which they are made;
(vii) assisting with Parent’s preparation of pro forma financial statements for Parent in compliance with Article 11 of Regulation S-X under the Securities Act as reasonably required or customarily included in offering materials for transactions involving the private placement of non-convertible high-yield bonds in connection with the Debt Financing provided, that (A) Parent shall be responsible for the preparation of such pro forma financial statements and any marketing pro forma adjustments giving effect to the transactions contemplated herein and (B) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records;
(viii) using reasonable best efforts to cause the independent auditors of the Company to provide reasonable and customary assistance and cooperation in connection with the Debt Financing, provided that including using reasonable best efforts to cause such independent auditors to provide consents to the recipients use of their audit reports and deliver customary “comfort letters” (which shall provide customary “negative assurance” and change period comfort) for a Rule 144A placement of securities (and to provide drafts of such information agree to customary confidentiality arrangements;
(i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation comfort letters in advance of the Debt Financing; and
(j) if requested by commencement of the Investors (in connection with the arrangement marketing of the Debt Financing) or lenders under with respect to financial information contained in the offering materials relating to the Debt Financing (and using reasonable best efforts to provide customary representations to such independent auditors in connection with the foregoing);
(ix) cooperating with the Debt Financing Sources’ due diligence in connection with the Debt Financing, to the extent customary and reasonable; and
(x) providing, at least three four (34) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested required by such lenders relating to applicable “know your customer” ”, beneficial ownership and anti-money laundering and any other applicable governmental rules and regulationsregulations including the USA PATRIOT Act to the extent requested at least eight (8) Business Days prior to the Closing Date. Without limiting provided, that such requested cooperation does not unreasonably interfere with the generality ongoing operations of the foregoing, Company Entities and no such cooperation shall require (a) the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to Entities or any of them set forth in the Porsche Merger Agreement with respect their respective Subsidiaries to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to incur any person liability or pay any right, title fee or interest therein except for the limited rights expressly provided in this sentence) expense in connection with the Debt Financing so long prior to the Closing, (b) the Company Entities or any of their respective Subsidiaries (i) in the case of individuals, to deliver, or be required to deliver, any certificate or instrument or take any action that would reasonably be expected to result in any personal liability or (ii) to make any representation, warranty or certification which the Company or such Subsidiary has determined in good faith is not true, (c) the pre-Closing board of directors or managers (or other managing person or group) of any Company Entity or any committee thereof to adopt a consent or resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or incur any personal liability, (d) the Company Entities or any of their respective Subsidiaries to execute prior to the Closing any financing documents that will be effective prior to the Closing, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Debt Financing, other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above, (e) the Company Entities or any of their respective Subsidiaries to take any corporate or similar actions that will be effective prior to the Closing to permit the consummation of the Debt Financing, (f) the Company Entities or any of their respective Subsidiaries to provide cooperation that the Company or such Subsidiary reasonably believes would (i) conflict with or violate, result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any applicable Law or Material Contract (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such applicable Law or Material Contract), (ii) result in the loss of attorney-client privilege or other similar legal privilege (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such privilege) or (iii) cause any of Company’s representations or warranties in this Agreement to be breached or any condition precedent set forth in this Agreement to fail to be satisfied, (g) the Company Entities or any of their respective Subsidiaries to consent to the pre filing of UCC-1s or the grant of liens on the Company Entities’ assets prior to the Closing, or (h) require any Company Entity or any of their respective Subsidiaries to prepare or deliver any financial statements or financial information in a form not customarily prepared by the Company or any financial information with respect to a fiscal period that has not yet ended, or for which the applicable quarterly or annual report has not been filed with the SEC or the delivery of projections, pro forma financial information or any other forward-looking information, in each case, other than the Required Information. In addition, nothing herein shall require any director, manager, officer or employee of the Company or any of its Subsidiaries who will not continue to hold such position following the Effective Time to execute any resolution(s) or written consent(s), or any certification, document, instrument or agreement, in connection with any financing contemplated by this Section 5.21, other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above. Parent covenants and agrees that any confidential information memoranda, lender presentations and similar marketing documents, material for investor presentations, offering memoranda and private placement memoranda (including under Rule 144A), materials for rating agency presentations and other offering documents or marketing materials contemplated hereby shall contain disclosures and disclaimers, to the extent applicable, reflecting the Company and/or its Subsidiaries as an obligor on the Debt Financing effective only at and after the Effective Time. The Company Entities hereby consent to the use of the Company Entities’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended to nor to, or reasonably likely to harm to, harm, disparage or disparage otherwise adversely affect the Company Entities or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion Entities, and solely in connection with a description of the Debt Financing becomes unavailable on Company and/or its Subsidiaries, including their businesses, or the terms Merger. Parent and conditions contemplated in the Debt Financing CommitmentXxxxxx Sub shall indemnify, defend and hold harmless the Company shall provideEntities and their respective shareholders, and shall seek to have Porsche and its managers, members, officers, directors, employees, financial advisorsother Affiliates, counselagents and Representatives (the “Company Indemnitees”) from and against any and all losses, accountants and other Representatives and Affiliates providedamages, such cooperation as may be reasonably requested claims, costs or expenses incurred by the Investors them in connection with obtaining alternative financing the provision of assistance pursuant to Section 5.21(b) and any information used in connection therewith, except any such losses, damages, claims, costs or expenses determined by a court of competent jurisdiction in a final non-appealable judgment to have resulted from alternative sources.
(ka) No lender under any willful misconduct or bad faith by the Debt Financing will have Company Indemnitees or (b) any liability material misstatement or omission in information relating to the Company Entities provided by the Company Indemnitees. Parent shall promptly upon the Company’s request reimburse the Company for all reasonable out-of-pocket and documented costs and expenses (including fees and disbursements of a single outside counsel and any additional outside counsel as reasonably consented to by Parent) incurred by the Company Entities in connection with such cooperation pursuant to Section 5.21(b). The obligations of Parent and Merger Sub set forth in this paragraph (collectively, the “Parent Indemnity and Reimbursement Obligations”) shall survive the Closing or any of its Affiliates relating to or arising out the termination of this Agreement, whether or not the Merger is consummated. All non-public or otherwise confidential information regarding the Company Entities obtained by Parent pursuant to Section 5.21(b) shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided that Parent shall be permitted to disclose such information (i) to the Debt Financing Sources, rating agencies and prospective lenders and investors of the Debt Financing or otherwiseany permitted replacement, whether at law or equityamendment, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company Subsidiaries or any of its or their respective directors or officers or other personnel, shall be required by this Section 7.15 to take any action or provide any assistance that unreasonably interferes in any material respect with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment or any resolution or otherwise take any corporate or similar action with respect to the Debt Financing thatthereto, in each case, so long as such non-public or otherwise confidential information regarding the Company Entities is not conditioned on afforded substantially the occurrence same confidentiality protections as similar information of Parent that is distributed to such Persons and (ii) as, and in such case only to the extent, required by the Exchange Act, the rules and regulations of the ClosingSEC or any rule or regulation of any securities exchange upon which the securities of Parent are listed or traded.
(c) The Company hereby (i) consents to the inclusion of the financial statements referred to in Section 3.5(b) of this Agreement and the Required Information, as applicable, prior to the Closing in (A) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, any registration statement filed by Parent in connection with an offering or exchange of securities on Form S-1, Form S-3 or Form S-4 (or any successor forms) under the Securities Act in compliance with the requirements of Regulation S-X and Regulation S-K, as applicable, (B) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, the Proxy Statement, any Form 8-K or other Exchange Act filing and (C) subject to the provisions of Section 5.21(b), any prospectuses, private placement memoranda, lender and investor presentations, offering documents, bank information memoranda, rating agency presentations and similar documents customarily used in connection with the Debt Financing, including, any customary “offering memoranda” in connection with a debt securities offering, whether public or private and (ii) agrees to use reasonable best efforts to cause its independent auditors to provide any consents to the use of their audit reports in any registration statement or Exchange Act filing by Parent to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent.
(d) Without limiting the effect of Section 8.10, Xxxxxx and Xxxxxx Sub agree and acknowledge that their obligations to consummate the transactions contemplated herein are not subject to or conditioned upon their obtaining financing.
Appears in 1 contract
Samples: Merger Agreement (Bluegreen Vacations Holding Corp)
Debt Financing. The Company and Parent agree (i) Prior to the Closing Date, the Company shall use their its commercially reasonable best efforts to provide, and shall cause each Subsidiary of the Company to use their its commercially reasonable best efforts to cause their respective officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, to Parent and (ii) to exerciseMerger Sub, in each case at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provideParent’s sole expense, all customary cooperation reasonably requested in writing by the lenders under the Debt Financing and/or Investors Parent (e-mail being sufficient) in connection with the arrangement offering, arrangement, syndication, consummation or issuance of any financing with respect to the Acquired Companies and the Company Properties effective as of or after the Merger Effective Time (the “Debt Financing, ”) (provided that nothing in this clause (ii) shall require such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or Parent to commence a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the followingany of its Affiliates), including using commercially reasonable efforts to:
(a1) participating (upon reasonable notice, direct employees of the Company with appropriate seniority and expertise of the Company to participate as possible) at in a reasonable times, upon reasonable advance notice, in meetings, presentations, due diligence sessions, and sessions number of meetings (including one-on-one meetings or conference calls with rating agencies, and otherwise cooperating with the marketing efforts for any providers of the Debt Financing), drafting sessions, road shows, rating agency presentations and due diligence sessions and other syndication activities and presentations with prospective lenders at reasonable times and locations mutually agreed; provided, that any such meeting or communication may be conducted virtually by videoconference or other media;
(b2) assisting the lenders under the Debt Financing and/or the Investors (in connection provide reasonable and customary assistance to Parent with the arrangement of the Debt Financing) with the timely preparation of customary: (1) customary offering documents, offering memoranda, syndication materials, information memoranda, lender presentations, materials for rating agency presentations, private placement memoranda, bank information memoranda and similar documents; (2) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (documents reasonably necessary in connection with the arrangement of the Debt Financing) in connection Financing and provide reasonable cooperation with the preparation and registration due diligence efforts of any pledge source of any Debt Financing to the extent reasonable and security documentscustomary; in each case in this clause: (A) subject to customary confidentiality provisions and disclaimers; (B) as reasonably requested by Parent; and (C) limited to information to be contained therein with respect to the Acquired Companies;
(3) furnish Parent, currency or interest hedging arrangements reasonably promptly upon written request, with such historical and projected financial, statistical and other definitive financing documents pertinent information relating to the Acquired Companies as may be reasonably requested by Parent, as is usual and customary for Debt Financings and reasonably available and prepared by or for the lenders under Acquired Companies in the ordinary course of business;
(4) assist with the preparation of customary definitive loan documentation contemplated by the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports schedules), including any customary guarantee, pledge and security documents (provided that any such documents or agreements and any obligations contained in any materials relating to the Debt Financing and accountants’ comfort letters, in each case, such documents shall be effective no earlier than as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt FinancingMerger Effective Time)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d5) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing provide to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters Parent upon written request all documentation and other cooperation in connection information with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior respect to the Closing Date;
(g) delivering notices of prepayment within the time periods Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters to the lenders under the Debt Financing authorizing the distribution of information to prospective lenders or investors, in connection with any marketing efforts PATRIOT Act in connection with the Debt Financing, provided that the recipients of such information agree to customary confidentiality arrangementsin each case as reasonably requested by Parent;
(i6) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (cooperate in connection with the arrangement repayment or defeasance of any existing Indebtedness of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior Acquired Companies as of, and subject to occurrence of, the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by release of related Liens following the repayment in full of such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoingIndebtedness, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use including using commercially reasonable efforts to cause deliver such customary payoff, defeasance or similar notices within the time periods contemplated under any existing loans of the Acquired Companies as are reasonably requested by Parent (provided, that the Company shall not be required to be satisfied all conditions deliver any notices that are not conditioned on, and subject to fund the occurrence of, the Closing);
(7) cooperate with obtaining customary title insurance with respect to each material Company Property as reasonably requested by Parent;
(8) provide reasonable and customary assistance with respect to attempting to obtain any third-party consents associated with the delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Debt Financing. The Company hereby ;
(9) cause the Company’s independent auditors to deliver customary “comfort letters” and customary consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) accountants’ audit reports in connection with the Debt Financing so long as Financing;
(10) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing;
(11) consent to the use of the Acquired Company’s logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to to, nor reasonably likely to to, harm or disparage the Company or the Acquired Company’s reputation or goodwill goodwill;
(12) reasonably cooperate with the marketing efforts of Parent and its financing sources for any Debt Financing to be raised by Parent to complete the Merger and the other transactions contemplated by this Agreement;
(13) as may be reasonably requested by Parent, following the obtainment of the Stockholder Approval, form new direct or indirect Wholly Owned Company Subsidiary pursuant to documentation reasonably satisfactory to Parent and the Company;
(14) as may be reasonably requested by Parent, and no earlier than immediately prior to the Merger Effective Time on the Closing Date, and provided such actions would not adversely affect the Tax status of the Company or any of its marks Subsidiaries or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
(k) No lender under the Debt Financing will have any liability to cause the Company or any of its Affiliates Subsidiaries to be subject to additional Taxes or otherwise suffer or incur any amounts that are not indemnified by Parent under Section 7.12(a)(iii), transfer or otherwise restructure its ownership of existing Subsidiaries of the Company, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company;
(15) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, attempt to obtain estoppels and certificates from non-residential tenants, lenders, managers, franchisors, ground lessors, ground lessees and counterparties to reciprocal easement agreements, declarations and similar agreements in form and substance reasonably satisfactory to any potential financing source;
(16) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, provide customary and reasonable assistance to allow Parent and its Representatives to conduct customary appraisal and non-invasive environmental and engineering inspections of each Owned Company Property and, subject to obtaining required third-party consents with respect thereto (which the Company shall use reasonable efforts to obtain to the extent reasonably requested by Parent and required in connection with such inspections), Leased Company Property (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, (B) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 7.2, and (C) the Company shall be entitled to have representatives present at all times during any such inspection); and
(17) to the extent necessary or advisable, reasonably cooperate to facilitate, effective no earlier than the Closing, the execution and delivery of definitive financing, pledge, security and guarantee documents reasonably requested by Parent and required in connection with the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing.
(ii) The Company shall have satisfied its obligations set forth in Section 7.12(a)(i) if the Company shall have used its commercially reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. Notwithstanding the foregoing, the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under Section 7.12(a)(i) to the extent that it: (i) unreasonably interferes with the ongoing business of the Acquired Companies; (ii) requires the Acquired Companies to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Debt Financing prior to the Closing (except those fees, expenses and liabilities for which the Company is reimbursed by Parent); (iii) requires the Acquired Companies or their respective directors, trustees, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing (other than with respect to customary authorization letters with respect to bank information memoranda) or adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, in each case which is not contingent upon the Closing or would be effective at or prior to the Merger Effective Time; (iv) requires the Acquired Companies or their counsel to give any legal opinion; (v) requires the Acquired Companies to provide any information that is prohibited or restricted by applicable Law; (vi) provide access to or disclose information that the Company or any of its Subsidiaries determines would result in a loss or waiver of or jeopardize any attorney-client privilege, attorney work product or other legal privilege (provided, that the Company shall use reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in this clause (vi)); (vii) requires the Acquired Companies to take any action that is prohibited or restricted by, or would conflict with or violate, its organizational documents, or would result in a violation or breach of, or default under, any Material Contract to which any of the Acquired Companies is a party or any applicable Laws; (viii) would result in any officer or director of the Acquired Companies incurring personal liability with respect to any matter relating to or arising out of this Agreement, the Debt Financing or otherwiserequires any officer, whether at law director or equity, in contract, in tort or otherwise. Neither other Representative of the Company nor any of its Affiliates will have any liability to the lender or any of its Subsidiaries to deliver any certificate that such officer, director or other Representative reasonably believes, in good faith, contains any untrue certifications or (ix) requires the Acquired Companies or their Representatives, as applicable, to waive or amend any terms of this Agreement. In no event shall the Company be in breach of this Agreement because of the failure to deliver any financial or other information that (A) is not currently readily available to the Acquired Companies on the date hereof and is not otherwise prepared in the ordinary course of business of Acquired Companies at the time requested by Parent or (B) for the failure to obtain review of any financial or other information by its accountants after using commercially reasonable efforts to obtain the same. In no event shall the Acquired Companies be required to pay any commitment or other fee or give an indemnity or incur any liability (including due to any act or omission by the Company, its Subsidiaries or any of their respective Affiliates relating to or arising out Representatives) or expense (including legal and accounting expenses) in connection with assisting Parent and Merger Sub in arranging the Debt Financing or otherwiseas a result of any information provided by the Company, whether at law its Subsidiaries or equity, any of their respective Affiliates or Representatives in contract, in tort or otherwise.
(l) Notwithstanding anything connection with the Debt Financing prior to the contrary Merger Effective Time (except those fees, expenses, financial commitments or other financial obligations for which the Company is reimbursed by Parent). None of the representations, warranties or covenants of the Company set forth in this AgreementAgreement shall be deemed to apply to, none or deemed breached or violated by, any of the actions taken by the Company, any of the Company Subsidiaries Subsidiaries, or any of its or their respective directors or officers or other personnelRepresentatives at the request of Parent pursuant to Section 7.12. For the avoidance of doubt, shall be required by the Parties hereto acknowledge and agree that the provisions contained in this Section 7.15 7.12(a)(ii) represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to take any action or provide any assistance that unreasonably interferes cooperation in any material respect connection with the ongoing operations of the Company and the Company Subsidiaries or to execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the ClosingDebt Financing.
(miii) Notwithstanding anything Parent shall reimburse the Acquired Companies promptly upon demand for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ and accountants’ fees) (other than in this Agreement respect of the preparation of customary historical financials) incurred by the Acquired Companies and its Representatives in connection with the cooperation under Section 7.12, any action taken by them at the request of Parent pursuant to Section 7.12 (including the contrarydissolution and termination of any subsidiaries formed and documentation entered into pursuant to Section 7.12), none and shall indemnify and hold harmless the Acquired Companies and their Representatives and each of the Acquired Companies’ and their Representatives’ respective present and former directors, officers, employees and agents (collectively, the “Financing Indemnified Parties”) from and against any and all out-of-pocket costs, expenses, losses, damages, claims, judgments, fines, penalties, interest, settlements, awards and liabilities suffered or incurred by any of them in connection with the arrangement and consummation of the Debt Financing and any information used in connection therewith (other than the information provided in writing by the Company or the Company Subsidiaries other Acquired Companies to Parent specifically in connection with their obligations pursuant to Section 7.12(a)). The provisions of this Section 7.12(a)(iii) are intended to be for the benefit of, and shall be required enforceable by, each of the foregoing Financing Indemnified Parties. This Section 7.12(a)(iii) shall survive the termination of this Agreement (and in the event the Merger and the other transactions contemplated hereby are not consummated, Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by the Company and its Subsidiaries in connection with the cooperation under Section 7.12, and not previously reimbursed).
(iv) All confidential information regarding the Acquired Companies obtained by the Parent Parties and their respective Affiliates and Representatives pursuant to (a) pay any commitment or other similar feeSection 7.12 shall be kept confidential in accordance with the Confidentiality Agreement. For the avoidance of doubt, including under any guarantee or pledge without the prior written consent of the Company, in no event will Parent, Merger Sub or any other document relating of their respective Affiliates (which for this purpose will be deemed to the Debt Financing prior to the Closing include each direct investor in Parent or (bMerger Sub) enter into any binding agreement or commitment agreement, arrangement or any resolution other understanding, whether written or oral, with any potential source of Debt Financing that would reasonably be expected to limit, restrict, restrain, otherwise take impair in any corporate manner, directly or similar action with respect indirectly, the ability of such source of Debt Financing to provide Debt Financing or other assistance to any other party in any other transaction involving the Acquired Company (provided that the foregoing shall not prohibit the establishment of customary “tree” arrangements).
(v) Prior to the Closing Date, upon the request of the Company, Parent shall keep the Company reasonably informed in reasonable detail of the status of its efforts to arrange the Debt Financing. The Parent Parties acknowledge and agree that the obtaining of the Debt Financing that, in each case, is not conditioned on a condition to Closing and that the occurrence consummation of the Closingtransactions contemplated by this Agreement shall not be conditioned on, or delayed or postponed as a result of the obtaining (or the failure to obtain) the Debt Financing.
Appears in 1 contract
Debt Financing. The (a) From the date hereof until the Effective Time, the Company and Parent agree (i) to use their reasonable best efforts to provideshall, and to shall use their its reasonable best efforts to cause each of their respective officers, directors, employeesemployees and representatives to, financial advisors, counsel, accountants and other Representatives and Affiliates to provide, and (ii) to exercise, at the request of the Investors, their rights under the Porsche Merger Agreement to seek compliance by Porsche with its obligations to provide, all provide such cooperation as is reasonably requested by the lenders under the Debt Financing and/or Investors Parent in connection with the arrangement of the Debt Financing, provided that nothing in this clause including (iiA) shall require the Company or Parent causing appropriate officers and employees to commence be available, on a Proceeding against Porsche. Such cooperation shall include but shall not be limited to the following:
(a) participating (with appropriate seniority customary basis and expertise of the Company to participate as possible) at reasonable times, upon on reasonable advance notice, to meet with prospective lenders and investors in meetings, presentationsdrafting sessions, due diligence sessions, management presentations, road shows and sessions with rating agencies, and otherwise cooperating (B) assisting with the marketing efforts for any of the Debt Financing;
(b) assisting the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) with the timely preparation of customary: (1) materials for rating agency presentations, bank information memoranda business projections and financial statements (including those required by the SEC), and assisting Parent in preparing offering memoranda, private placement memoranda, prospectuses and similar documents; , (2C) memoranda and similar documents; and (3) forecasts of financial statements for one or more periods following the Closing Date (whichrequesting its independent accountants to provide reasonable assistance to Parent, for the avoidance of doubt, will not include or be deemed including requesting such accountants to require the Company provide consent to Parent to prepare such forecasts of financial statements), in each case, as requested by the lenders under the Debt Financing or as otherwise required in connection therewith;
(c) cooperating with the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing) in connection with the preparation and registration of any pledge and security documents, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested by the lenders under the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their audit reports in any materials relating to the Debt Financing Company and accountants’ any necessary "comfort letters," (D) forming, in each case, as reasonably requested by the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing)), and otherwise reasonably facilitating the pledging of collateral, including but not limited to stock certificates, and the granting of security interests in respect of the Debt Financing;
(d) furnishing the lenders under the Debt Financing and/or the Investors (in connection with the arrangement of the Debt Financing), as promptly as practicable, with the Required Financing Information;
(e) cooperating with the lenders under the Debt Financing to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance as reasonably requested by such lenders;
(f) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date;
, new wholly owned subsidiaries, and transferring assets into those subsidiaries, to the extent not prohibited by law or any contracts to which the Company is a party or is bound (gprovided that in the event a contract prohibits such transfer and the transfer cannot otherwise be structured in a manner to avoid conflict with the terms of such contract, the Company agrees to use reasonable efforts to obtain consents necessary to effectuate such transfers), and (E) delivering notices of prepayment within provide reasonable access to the time periods Owned Real Property, in accordance with SECTION 4.2, during normal business hours to the extent necessary for Parent to obtain surveys, engineering reports, zoning reports, environmental reports and appraisals required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(h) providing authorization letters Financing Commitments with respect to the lenders under Owned Real Property. Parent shall pay to the Debt Financing authorizing Company any costs or expenses incurred by the distribution of information to prospective lenders or investors, in connection with any marketing efforts Company in connection with the Debt Financingforegoing.
(b) Notwithstanding the foregoing or SECTION 4.4 or 5.3(C), provided the parties acknowledge and agree that the recipients of such information agree to customary confidentiality arrangements;
nothing in this Agreement shall (i) taking all corporate and other actions reasonably requested by the lenders under the Debt Financing to permit the consummation of the Debt Financing; and
(j) if requested by the Investors (in connection with the arrangement of the Debt Financing) or lenders under the Debt Financing at least three (3) Business Days prior to the Closing Date, within a reasonable time furnishing the lenders under the Debt Financing with all documentation and other information about the Company and the Company Subsidiaries and Affiliates as is reasonably requested by such lenders relating to applicable “know your customer” anti-money laundering and any other applicable governmental rules and regulations. Without limiting the generality of the foregoing, the Company and its Subsidiaries shall comply, and shall seek to have Porsche and its Subsidiaries comply, with the covenants applicable to any of them set forth in the Porsche Merger Agreement with respect to the Debt Financing, and shall use commercially reasonable efforts to cause to be satisfied all conditions to fund the Debt Financing. The Company hereby consents to the reasonable use of its logos (without granting to any person any right, title or interest therein except for the limited rights expressly provided in this sentence) in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its marks or other Company Intellectual Property Rights. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, the Company shall provide, and shall seek to have Porsche and its officers, directors, employees, financial advisors, counsel, accountants and other Representatives and Affiliates provide, such cooperation as may be reasonably requested by the Investors in connection with obtaining alternative financing from alternative sources.
(k) No lender under the Debt Financing will have any liability to the Company or any of its Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise. Neither the Company nor any of its Affiliates will have any liability to the lender or any of its Affiliates relating to or arising out the Debt Financing or otherwise, whether at law or equity, in contract, in tort or otherwise.
(l) Notwithstanding anything to the contrary in this Agreement, none of require the Company, any of the Company Subsidiaries Stockholders or any of its or their respective officers, directors or officers Affiliates to (x) enter into or execute any commitment letter, underwriting or placement agreement, pledge or security document, loan agreement, note purchase agreement, registration rights agreement, indenture or any other Contract, or any registration statement or other personnelfiling with the SEC, shall be required or any certificate or other document in connection with any financing or other funds sought by this Section 7.15 to Parent, (y) commence or take any other action with respect to any tender offer for, or provide any assistance that unreasonably interferes in consent with respect to, or any material respect with the ongoing operations repayment of, or amendment or modification to, any debt securities or other indebtedness of the Company and the Company Subsidiaries or to execute or deliver any certificate(other than ministerial actions, document, instrument or agreement that is effective prior including facilitating access to the Closing trustee with respect to, or agree providing a list of the holders of, any such debt securities), or (z) obtain any rating agency confirmations or approvals, (ii) require counsel to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing.
(m) Notwithstanding anything in this Agreement to the contrary, none of the Company or the Stockholders to deliver any legal opinion in connection with any financing or funds sought by Parent, or (iii) require the Company Subsidiaries shall be required to (a) pay any commitment or other similar fee, including under any guarantee or pledge or any other document relating to of the Debt Financing prior to the Closing or (b) enter into any binding agreement or commitment Stockholders, or any resolution officer, director, employee, counsel or otherwise take advisor thereof, to make any corporate representation or similar action warranty, incur any liability or provide for any indemnification or expense reimbursement in connection with respect to the Debt Financing that, in each case, is not conditioned on the occurrence of the Closingany financing or funds sought by Parent.
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