Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing. (b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP. (c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions. (d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 5 contracts
Samples: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedhereof, each of Parent REIT, Parent OP, Parent Sub, the Company Parties hereto agrees (and the Contributors shall cause its respective Subsidiaries) to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 transactions contemplated by this Agreement and the entry into the Tax Matters Ancillary Agreements, together and to cooperate with each other in connection with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoforegoing, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use using its reasonable best efforts to (i) cooperate obtain all necessary Consents from other parties to material agreements, leases and other contracts, including those set forth in Section 3.04 of the Company Disclosure Letter, (ii) prepare, execute and deliver such instruments and take or cause to be taken such actions as any other party shall reasonably request, (iii) obtain all material respects with each necessary Consents from Governmental Entities as are required to be obtained under any applicable Law, (iv) lift or rescind any injunction or restraining order or other order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby and (v) effect any necessary registrations and filings and submissions of information requested or required by Governmental Entities, including those contemplated by or required in connection with obtaining the performance of the obligations contained in Section 1.10.
(b) The Parties shall use their respective reasonable best efforts to resist, contest or defend any consentsuit, waiver claim, action or proceeding (including administrative or judicial actions and proceedings) challenging the Merger or the completion of the transactions contemplated hereby. Subject to applicable Law and the instructions of any Governmental Entity, the Parties shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other accommodation (including the Required Consents) written communications received by such Party or any of their respective subsidiaries, from any Person as may be necessary or desirable Governmental Entity and/or Third Party with respect to obtain any consentsuch transactions, waivers or approvals required and, to consummate the Contemplated Transactions and (ii) keep extent practicable under the circumstances, shall provide the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection counsel with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days opportunity to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lenderGovernmental Entity in respect of any filing, servicer investigation or agent for other inquiry in connection with the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions contemplated hereby.
(c) Subject to In connection with and without limiting the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality generality of the Contemplated Transactions or seeks damages in connection therewithclause (v) of Section 5.06(a), each of the parties Parties hereto agrees shall make or cause to cooperate be made, in consultation and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued cooperation with the others and as promptly as practicable after the date of this Agreement (but in any such actionevent, suit or other proceedingwithin ten (10) Business Days following the date of this Agreement), all necessary registrations, declarations, notices and filings relating to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding the Merger with any other impediment to the consummation of the Contemplated TransactionsGovernmental Entities under any other antitrust, competition, trade regulation or similar Laws.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use its reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, but not waiverincluding the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the conditions precedent to consummating the transactions contemplated by this Agreement. Each party agrees to cooperate fully with the other party in assisting it to comply with this Section 5.8, and Shareholders agree to take such steps as may be necessary to remove any Encumbrances (other than Permitted Encumbrances) which affect the Assets. Without limiting the generality of the closing conditions set forth in Article 8 foregoing, (i) Shareholders agree to provide and to cause the entry into the Tax Matters Agreements, together Companies and their Personnel to provide all necessary cooperation with the Member Guarantees arrangement of any financing, or amendments or waivers in connection with existing financing arrangements, to be consummated in respect of the transactions contemplated by this Agreement, including participation in meetings, due diligence sessions and Capital Contribution Agreements that road shows, the preparation of offering memoranda and similar documents as Buyer shall reasonably request; (ii) Shareholders agree to provide and to cause the Companies and their Personnel to provide all necessary cooperation and information in connection with the preparation of any fairness opinion which the Buyer may request of any investment bank or similar firm, in each case as the Buyer or such bank shall reasonably request; and (iii) each party hereto shall defend and cooperate with each other party in defending any legal proceedings, whether judicial or administrative and whether brought derivatively or on behalf of third parties, challenging this Agreement or the consummation of the transactions contemplated hereby. No consideration, whether such consideration shall consist of the payment of money or shall take any other form, for any such consent, waiver or agreement necessary to the consummation of the transactions contemplated hereby shall be given or promised by Shareholders or the Companies without the prior written approval of Buyer. No Shareholder shall seek to exercise any dissenters rights or similar rights which may become available in connection with any of the transactions contemplated hereby. In the event that, owing to restrictions imposed by any Laws, the Buyer would be prevented from acquiring one or more portions of the Companies' Assets or Business as contemplated herein, then the parties hereto shall fully cooperate in arranging for the sale or other disposition to a third party of such portion or portions of the Companies' Assets or Business as are exhibits thereto, necessary to enable the parties hereto to consummate the transactions contemplated by this Agreement on terms as nearly as possible identical to the terms provided for at the time this Agreement was executed and delivered by the New Company Agreement)parties hereto. Notwithstanding the foregoing foregoing, nothing contained herein shall require (i) Buyer to enter into any agreement or anything in this Agreement other arrangement for the financing of the transactions contemplated hereby on terms that are not satisfactory to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))Buyer, in exercising such reasonable efforts its sole discretion or (ii) any party hereto to initiate any litigation, make any substantial payment or incur any material economic burden, except for payments a party presently is contractually obligated to make, to obtain any consent, waiver waiver, authorization, order or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingapproval.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 3 contracts
Samples: Acquisition Agreement (Smithfield Foods Inc), Acquisition Agreement (Smithfield Foods Inc), Acquisition Agreement (Smithfield Foods Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITContributor, Parent OP, Parent Sub, each Acquiror Party and the Company and the Contributors shall use commercially reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 7). Each Contributor, each Acquiror Party and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such shall use commercially reasonable efforts to obtain any consent, waiver consents of all Governmental Entities or other accommodation (including third parties necessary to consummate the Required Consents) from any Person that is not a Governmental Entitytransactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents shall be borne by the Party incurring such costs and, none of the Group Companiesin no event, the Contributorsshall either Contributor, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall Affiliates or the Company be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, required to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment payments (other than to routine administrative fees, contractual change of control payments and attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise’ fees) or agree provide other types of consideration in order to seek or commit to facilitate the obtaining of any of the foregoingsuch consents.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Proceeding and, if an injunction or other order is issued in any such action, suit or other proceedingProceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(dc) Parent REIT, Parent OP Contributors and Parent Sub the Acquiror Parties shall notpermit counsel for the other Party reasonable opportunity to review in advance, and shall not permit any of their respective controlled Affiliates to, without consider in good faith the prior written consent views of the Representativeother Party in connection with, enter into any mergerproposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Each Contributor and each Acquiror Party agrees not to participate in any substantive meeting or discussion, acquisitioneither in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other Party in advance and, joint venture to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate in such meeting or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsdiscussion.
Appears in 3 contracts
Samples: Contribution Agreement, Contribution Agreement (Energy Transfer Partners, L.P.), Contribution Agreement (Sunoco LP)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedset forth in this Agreement, each of Parent REITthe Parties hereto shall, Parent OPand shall cause any of its subsidiaries to, Parent Sub, the Company and the Contributors shall use its commercially reasonable efforts (subject to, and in accordance with, applicable law) to taketake promptly, or to cause to be taken, all actions actions, and to dodo promptly, or to cause to be done, and to assist and to cooperate with the other Parties in doing, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions Recapitalization, Merger and Exchange, including (includingi) obtaining all necessary actions or nonactions, without limitationwaivers, the satisfactionconsents and approvals, but not waiver, of the closing conditions set forth in Article 8 including from Governmental Entities and the entry into the Tax Matters Agreements, together with the Member Guarantees making of all necessary registrations and Capital Contribution Agreements that are exhibits thereto, filings and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence taking of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none (ii) obtaining all necessary consents, approvals or waivers from third parties, if any, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, the Merger Agreement or the consummation of the Group Companies, transactions contemplated hereby and (iv) executing and delivering any additional instruments reasonably necessary to consummate the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingtransactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, each of Holdings and the Consenting Noteholders will (i) promptly, but in no event later than fifteen (15) days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, including but not limited to approvals from the FCC approving the transactions contemplated by the Exchange (the “FCC Approval”), and (iii) use commercially reasonable efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Exchange, the Merger and the other transactions contemplated hereby.
(c) In furtherance and not in limitation of the covenants of the Parties contained in this Section 8.5 if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Exchange, the Merger or any other transaction contemplated by this Agreement, each of the parties hereto Holdings, Investco and Wireless shall use its respective commercially reasonable best efforts to (i) efforts, and the Consenting Noteholders shall cooperate in all material respects with each other in connection with obtaining any consentHoldings, waiver Investor or other accommodation (including the Required Consents) from any Person as may be necessary or desirable Wireless, to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions contest and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and resist any such materials shall be revised action or proceeding and to reflect have vacated, lifted, reversed or overturned any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lenderdecree, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein providedjudgment, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order order, whether temporary, preliminary or permanent, that is issued in any such actioneffect and that prohibits, suit prevents or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the restricts consummation of the Contemplated TransactionsExchange, the Merger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 8.5 shall limit a Party’s right to terminate this Agreement pursuant to Section 11.1(c) or 11.1(d) so long as such party has, prior to such termination, complied with its obligations under this Section 8.5.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 3 contracts
Samples: Exchange Agreement (Highland Capital Management Lp), Exchange Agreement (Suncom Wireless Inc), Exchange Agreement (DiMaio Ahmad Capital LLC)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 ARTICLE VII and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretodeliver such Ancillary Document when required pursuant to this Agreement, and the New Company Agreement). Notwithstanding the foregoing or anything (ii) making all such filings with and obtaining all such approvals of Nasdaq to permit Holdco Shares to be issued in accordance with this Agreement to be listed on Nasdaq) and not to take any action after the contrary (including the preceding sentence date of this Section 6.4(a) and Section 9.1(f))Agreement that would reasonably be expected to prevent, in exercising such reasonable efforts to obtain any consentmaterially delay, waiver or other accommodation (including materially impair the Required Consents) from any Person that is not a Governmental Entity, none consummation of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingTransactions.
(b) Subject to Without limiting the terms and conditions generality of this Agreementthe foregoing, each of the parties hereto Parties shall use its reasonable best efforts to (i) cooperate in all material respects promptly obtain, file with each other or deliver to, as applicable, any Consents of any Governmental Entities necessary, proper or advisable to consummate the Transactions. Each of the Company, on the one hand, and CCTS, on the other, shall bear 50% of the costs incurred in connection with obtaining such Consents, including any consentfiling or similar fees with respect to any Antitrust Laws; provided that each Party shall bear its out-of-pocket costs and expenses, waiver including but not limited to expenses of legal counsel, accountants, advisors, brokers, investment bankers, consultants, or other accommodation agents or service providers in connection with the preparation of any such Consents. Each Party shall (including i) make any appropriate filings or take, or cause to be taken, any required actions pursuant to any applicable Antitrust Laws with respect to the Required Consents) from any Person Transactions as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate promptly as practicable following the Contemplated Transactions date of this Agreement and (ii) keep respond as promptly as reasonably practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested pursuant to any Antitrust Laws. CCTS shall promptly inform the Company of any communication between CCTS, on the one hand, and any Governmental Entity, on the other party informed hand, and the Company shall promptly inform CCTS of any communication between the Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of the Transactions. Subject to Section 6.3(a), the Parties shall provide each other with copies of all material respects correspondence, filings or communications, including any documents, information and on a reasonably timely basis of any material communication received by such party data contained therewith, between them or any of its Affiliates fromtheir Representatives, or given by such party or on the one hand, and any of its Affiliates toGovernmental Entity, any lenderon the other hand, servicer or agent in connection with obtaining respect to this Agreement and the Required ConsentsTransactions. Without limiting the foregoing, (A) Parent OP each Party and Parent REIT their respective Affiliates shall be given no less than three (3) Business Days not extend any waiting period, review period or comparable period under any applicable Antitrust Laws or enter into any agreement with any Governmental Entity not to review consummate the Transactions, except with the prior written consent of CCTS and comment on all materials or documents relating to the Company. Nothing in this Transaction Section 6.2 obligates any Party or any of the parties hereto that is its Affiliates to be provided agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets, lines of business or facilities of any Group Company or any entity, asset, line of business or facility of such Party or any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP the foregoing measures with respect thereto to any other Party or any of its Affiliates, except with CCTS’s and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPCompany’s prior written consent.
(c) Subject From and after the date hereof until the earlier of the Closing or termination of this Agreement in accordance with its terms, CCTS, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of CCTS) or CCTS (in the case of the Company) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the terms and conditions herein providedTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the Transactions unless it consults with, in the event any claimcase of CCTS, actionthe Company, suitor, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions in the validity or legality case of the Contemplated Transactions Company, CCTS in advance and, to the extent not prohibited by such Governmental Entity, gives, in the case of CCTS, the Company, or, in the case of the Company, CCTS, the opportunity to attend and participate in such meeting or seeks damages discussion. The Parties agree to consult and cooperate with one another in connection therewithwith any analyses, each appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of the parties hereto agrees any Party in connection with judicial proceedings under or relating to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated TransactionsAntitrust Law.
(d) Parent REITNotwithstanding anything to the contrary in the Agreement, Parent OP in the event that this Section 6.2 conflicts with any other covenant or agreement in this ARTICLE VI that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and Parent Sub shall notcontrol solely to the extent of such conflict.
(e) From and after the date of this Agreement until the earlier of the Closing Date or termination of this Agreement in accordance with its terms, CCTS, on the one hand, and the Company, on the other hand, shall not permit each notify the other in writing promptly after learning of any shareholder demands or other shareholder Proceedings (including derivative claims) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of CCTS, CCTS or any of its Representatives (in their capacity as a representative of CCTS) or, in the case of the Company, any Group Company or any of their respective controlled Affiliates Representatives (in their capacity as a representative of a Group Company). CCTS and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation (to the extent such action would not jeopardize an attorney-client privilege or the attorney work product doctrine), (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation and (iv) reasonably cooperate with each other, including with respect to the defense, settlement and compromise of any such Transaction Litigation. Notwithstanding the foregoing, the Company shall, subject to and without limiting the covenants and agreements, and the rights of CCTS, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall the Company, any other Group Company or any of their respective Representatives settle or compromise any Transaction Litigation without the prior written consent of CCTS (such consent not to be unreasonably withheld, conditioned or delayed, it being understood to be reasonable for CCTS to withhold, condition or delay its consent if any such settlement or compromise (A) does not provide for a full, unconditional and irrevocable release of CCTS and each Representative that is the Representativesubject of such Transaction Litigation, enter into (B) provides for (x) the payment of cash any mergerportion of which is payable prior to the Closing by CCTS or any Representative thereof or would otherwise constitute a CCTS Liability or (y) any non-monetary, acquisitioninjunctive, joint venture equitable or debt similar relief against CCTS or equity financing, that would reasonably be expected to materially impair, delay (C) contains an admission of wrongdoing or prevent consummation Liability by CCTS or any of its Representatives). Without limiting the generality of the Financing foregoing, in no event shall CCTS or any of its Representatives settle or compromise any Transaction Litigation without the Contemplated TransactionsCompany’s prior written consent.
Appears in 3 contracts
Samples: Business Combination Agreement (VivoPower International PLC), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto Each Seller shall use its reasonable best efforts to (i) cooperate in take all material respects with each action and do all things necessary to consummate, as soon as reasonably practicable, the transactions contemplated hereby and by the other in connection with obtaining any consentTransaction Documents, waiver or other accommodation (including including, without limitation, preparing the Required Consents) from any Person as may be necessary or desirable Purchased Assets for transfer to obtain any consentthe Buyer, waivers or approvals required satisfying the conditions to the Buyer’s obligation to consummate the Contemplated Transactions transactions contemplated hereby and (ii) keep the other party informed in all material respects and on a reasonably timely basis of avoiding taking any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, action that would reasonably be expected to materially impairdelay the obtaining of, delay or prevent consummation result in not obtaining, any Consent or Order from any Person prior to the Closing. In the event that the Buyer, from time to time prior to the Closing, requests assistance from the Sellers that the parties agree is beyond the scope of the Financing foregoing commitment, the Sellers shall use their reasonable best efforts to provide such assistance to the extent that they have sufficient resources reasonably available to fulfill such requests and the Buyer shall reimburse the Sellers for the reasonable expenses (including employee time) of fulfillment.
(b) The Buyer shall use its reasonable best efforts to take all action and do all things necessary to consummate, as soon as reasonably practicable, the transactions contemplated hereby, including, without limitation, satisfying the conditions to the Sellers’ obligation to consummate the transactions contemplated hereby and avoiding taking any action that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any Consent or Order from any Person prior to the Contemplated TransactionsClosing.
(c) The Buyer and the Sellers will cooperate in good faith and each will use its reasonable best efforts to obtain any Consents from any Person necessary or advisable in order to effectively transfer and convey the Purchased Assets at the Closing, and each party will bear and be responsible for the costs of its own personnel, counsel and other advisors associated with obtaining such Consents.
(d) The parties will cooperate in good faith and each will use commercially reasonable efforts to support the efforts of the other in obtaining all Consents or Orders required from the Illinois Department of Insurance, Xxxxxx Xxx and Xxxxxxx Mac, including but not limited to the Sellers making available to the Buyer any and all policies, procedures and documentation that may be useful to the Buyer in developing its policies, procedures and business practices for submission to Xxxxxx Mae and Xxxxxxx Mac, and each party providing the other a reasonable opportunity to review and comment on any proposed regulatory filings related to the transactions contemplated hereby and giving due consideration to such party’s comments thereon.
(e) After the date hereof, except for communications with any state department of insurance, Xxxxxx Mae or Xxxxxxx Mac, each of the Buyer on the one hand and the Sellers on the other hand shall (i) consult with the other prior to sending any notices to, making any filings with, or having any communications with any Person with respect to the transactions contemplated by this Agreement, (ii) prior to the Closing, promptly consult with the other with respect to, provide any necessary information with respect to, and provide the other (or its counsel) with copies of, all notices sent, all filings made or any other information supplied by such party to a Person in connection with this Agreement and the transactions described herein and (iii) promptly inform the other of any communication from any Person regarding any of the transactions contemplated herein.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Essent Group Ltd.), Asset Purchase Agreement (Essent Group Ltd.), Asset Purchase Agreement (Triad Guaranty Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, and the Company and the Contributors shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective as promptly as practicable after the Contemplated Transactions date hereof the transactions contemplated by this Agreement, including (includingi) preparing and filing with applicable Governmental Entities as promptly as reasonably practicable all necessary applications, without limitationnotices, disclosures, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the transactions contemplated by this Agreement (collectively, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)“Governmental Approvals”), in exercising such reasonable efforts (ii) as promptly as reasonably practicable taking all steps as may be necessary to obtain all such Governmental Approvals, (iii) obtaining any consent, waiver or other accommodation (including the Required Consents) Consents required from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment third parties (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwiseGovernmental Approvals) or agree or commit to any in connection with the consummation of the foregoingtransactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly cooperate and coordinate with the other in the taking of the actions contemplated by the foregoing clauses (i) – (iv) and supply the other with any information that may be reasonable required in order to effectuate the taking of such actions.
(b) Subject In furtherance and not in limitation of the foregoing, each party, to the terms extent applicable to such party, hereto agrees to (i) file a “Form A” Acquisition of Control, together with all exhibits, affidavits and conditions certificates, with the New Jersey Department of Banking and Insurance with respect to the transactions contemplated hereby within fifteen (15) Business Days of the date of this Agreement, (ii) file an application with the Bermuda Monetary Authority pursuant to the Exchange Control Xxx 0000 regarding the change of ownership of the Company with respect to the transactions contemplated hereby within fifteen (15) Business Days of the date of this Agreement, (iii) make any and all necessary filings or notices with the applicable Insurance Regulator as soon as practicable after the date hereof, (iv) make an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby within fifteen (15) Business Days of the date of this Agreement, (v) supply as soon as practicable any additional information and documentary material that may be requested pursuant to such filings, (vi) use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 6.03 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable, (vii) make the filings with respect to any foreign Antitrust Laws set forth on Section 7.01(b) of the Company Disclosure Letter as soon as practicable, (viii) supply as soon as reasonably practicable any additional information and documentary material that may be required or requested by any Governmental Entity (including by complying with any “second request” for information or similar request from a Governmental Entity), (ix) use its reasonable best efforts to take or cause to be taken all other actions consistent with this Section 6.03 as necessary, proper or advisable to obtain any necessary approvals, consents, waivers, permits, authorizations or other actions or non-actions from each Governmental Entity as soon as practicable, and (x) not extend any waiting period under the HSR Act or other regulatory Laws, or enter into any agreement with the Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”) or any other Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto (which shall not be unreasonably withheld, conditioned or delayed).
(c) In connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement, each of Parent and the parties hereto Company shall, and shall cause their respective Affiliates to, use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consentcommunication, waiver filing or submission and in connection with any investigation or other accommodation (inquiry, including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and proceeding initiated by a private party; (ii) keep the other party and/or its counsel promptly informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party to, any Insurance Regulators, the FTC, the DOJ, CFIUS or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with any Insurance Regulators, the FTC, the DOJ, CFIUS or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the applicable Insurance Regulators, the FTC, the DOJ, CFIUS or such other Governmental Entity or other Person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences; (iv) consider in good faith the views of the other party and keep the other party reasonably informed of the status of matters related to the transactions contemplated by this Agreement; and (v) permit the other party and/or its counsel to review in advance, with reasonable time and opportunity to comment, give reasonable consideration to the other party’s comments thereon, and consult with each other in advance of any proposed submission, filing or communication (and documents submitted therewith) intended to be given by it to any Insurance Regulators, the FTC, the DOJ, CFIUS or any other Governmental Entity; provided that materials may be redacted (A) as necessary to comply with applicable Law, (B) as necessary to address reasonable privilege or confidentiality concerns and (C) to remove references concerning the valuation of the businesses of the Company and the Company Subsidiaries and (D) to remove any personal or financial information relating to investors in the Company or Parent and the officers, directors and other controlling persons of such investors, the Company, Parent or Merger Sub. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(c) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(d) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.03(a)–(c), but subject to Section 6.03(f), Parent and the Company shall take any and all steps not prohibited by Law to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any Judgment or injunction, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date, including defending (with sufficient time for resolution in advance of the End Date) through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate each and every impediment under any regulatory Law, so as, in each case, to enable the Closing to occur as soon as possible (and in any event no later than the End Date), including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of Parent, the Company and their respective subsidiaries, (B) terminating any existing relationships and contractual rights and obligations, terminating any venture or other arrangement, creating any relationship, contractual rights or obligations of Parent or the Company of any of their respective subsidiaries, or effectuating any other change or restructuring of Parent, the Company or any of their respective subsidiaries, (C) opposing, including through litigation and reasonably available avenues of appeal, except for any suit, action or other proceeding or appeal involving any Insurance Regulator, (1) any administrative or judicial action or proceeding that is initiated or threatened to be initiated challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement and (2) any request for the entry of, and seek to have vacated or terminated, any order that would restrain, prevent or materially delay the consummation of the transactions contemplated by this Agreement, in the case of (1) and (2) as may be required in order to resolve any objections as a Governmental Entity may have to such transactions under the HSR Act, any regulatory Law or any other applicable Law and/or to avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement, (D) commencing and/or defending any suit, action or other proceeding before any court or other applicable Governmental Entity, and pursuing all reasonably available avenues of appeal thereto, except for any suit, action or other proceeding or appeal involving any Insurance Regulator, as may be required in order to (1) resolve any objections as a Governmental Entity may have to such transactions under the HSR Act, any regulatory Law or any other applicable Law and (2) avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement, and (E) otherwise taking or committing to take actions that after the Closing would limit Parent’s and/or its Subsidiaries’ (including the Company’s and the Company Subsidiaries’) freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines or assets of Parent, the Company and/or their respective subsidiaries; provided, however, that any action contemplated by clauses (A), (B), (C), (D) and (E) is conditioned upon the consummation of the transactions contemplated by this Agreement.
(e) The Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; and (iii) any material written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(e) shall not limit or otherwise affect the remedies available hereunder to Parent or the Company.
(f) Notwithstanding anything to the contrary in this Agreement, in no event will Parent or any of its Affiliates to, any lender, servicer or agent be required (and in connection with obtaining no event shall the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction Company or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, Company Subsidiary agree without the prior written consent of the Representative, enter Parent) to take any action (including entering into any mergerconsent decree, acquisitionhold separate order or other arrangement), joint venture or debt to permit or equity financingsuffer to exist any material restriction, condition, limitation or requirement, that (when taken together with all other such actions, restrictions, conditions, limitations and requirements), individually or in the aggregate, could result in a Burdensome Condition. A “Burdensome Condition” shall mean any action, restriction, condition, limitation or requirement imposed by any Governmental Entity in connection with the Governmental Approvals which, individually or together with all other such actions, restrictions, conditions, limitations or requirements imposed by any Governmental Entity in connection with such Governmental Approvals would, or would reasonably be expected to materially impairresult in a material adverse effect on the business, delay operations or prevent consummation financial results of the Financing or Surviving Company and its Affiliates (including Parent and its Affiliates) measured on a scale relative to the Contemplated TransactionsCompany and the Company Subsidiaries taken as a whole.
Appears in 2 contracts
Samples: Merger Agreement (Arch Capital Group Ltd.), Merger Agreement (Watford Holdings Ltd.)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedof this Agreement, each of Parent REIT, Parent OP, Parent Sub, the Company Parties hereto agrees (and the Contributors shall cause its respective Subsidiaries) to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 transactions contemplated by this Agreement and the entry into the Tax Matters Ancillary Agreements, together and to cooperate with each other in connection with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoforegoing, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use using its reasonable best efforts to (ii)obtain all necessary Consents from other parties to material agreements, leases and other contracts, including those set forth in Section 3.04 of the Company Disclosure Letter, (ii) cooperate in prepare, execute and deliver such instruments and take or cause to be taken such actions as any other party shall reasonably request, (iii) obtain all material respects with each necessary Consents from Governmental Entities as are required to be obtained under any applicable Law, (iv) lift or rescind any injunction or restraining order or other Order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby and (v) effect any necessary registrations and filings and submissions of information requested or required by Governmental Entities, including those contemplated by or required in connection with obtaining the performance of the obligations contained in Section 1.10.
(b) The Parties shall use their respective reasonable best efforts to resist, contest or defend any consentProceeding challenging the Merger or the completion of the transactions contemplated hereby. Subject to applicable Law and the instructions of any Governmental Entity, waiver the Parties shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication written communications received by such party Party or any of its Affiliates fromtheir respective subsidiaries, or given by such party or from any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP Governmental Entity and/or Third Party with respect thereto to such transactions, and, to the extent practicable under the circumstances, shall provide the other Party and (B) its counsel with the Group Companies and their representatives shall not engage or opportunity to participate in any meeting or discussion or proposed discussion with any lenderGovernmental Entity in respect of any filing, servicer investigation or agent for other inquiry in connection with the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions contemplated hereby.
(c) Subject to In connection with and without limiting the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality generality of the Contemplated Transactions or seeks damages in connection therewithclause (v) of Section 5.06(a), each of the parties Parties hereto agrees shall make or cause to cooperate be made, in consultation and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued cooperation with the others and as promptly as practicable after the date of this Agreement (but in any such actionevent, suit or other proceedingwithin ten (10) Business Days following the date of this Agreement), all necessary registrations, declarations, notices and filings relating to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding the Merger with any other impediment to the consummation of the Contemplated TransactionsGovernmental Entities under any other antitrust, competition, trade regulation or similar Laws.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Frederick's of Hollywood Group Inc /Ny/), Merger Agreement (FOHG Holdings, LLC)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto party shall use its commercially reasonable best efforts, and the other parties shall cooperate reasonably with such efforts, to take or cause to be taken all actions and do or cause to be done all things reasonably required under all applicable Laws and this Agreement in order to consummate the transactions contemplated hereby, including commercially reasonable efforts to: (i) obtain any consents and approvals of, or effect the notification of or filing with, each Person, whether private or governmental, whose consent or approval is required to permit a due and punctual consummation of the transactions contemplated hereby and thereby; provided that none of Seller, Buyer or the Company shall be obligated to make a payment to obtain any such consent; and (ii) fulfill all conditions to the consummation of the transactions contemplated hereby and thereby. Prior to the Closing, Sellers shall use their commercially reasonable efforts to obtain all of the consents set forth in Section 4.02(b) of the Sellers Disclosure Schedule.
(b) Notwithstanding anything to the contrary in this Agreement, neither Buyer nor Sellers shall be required to (i) cooperate in all material respects with each other in connection with obtaining commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any consentbusinesses, waiver product lines or other accommodation (including assets of the Required Consents) from any Person as may be necessary Company Group, Buyer, its Affiliates or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and its Subsidiaries; (ii) keep otherwise take or commit to take actions that would limit Buyer’s or Sellers’ freedom of action with respect to, or its ability to retain, one or more of the other party informed in all material respects and on a reasonably timely basis businesses, product lines or assets of any material communication received by the Company Group, such party or any of party, its Affiliates from, or given by such its Subsidiaries; or (iii) expend money to a third party or in exchange for any consent of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated TransactionsPerson.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Rentech Inc /Co/)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions transactions contemplated by this Agreement, including (including, without limitation, i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 VIII and, in the case of any Additional Agreement to which such Party is contemplated to be a party after the date of this Agreement, to execute and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretodelivery such Additional Agreement when required pursuant to this Agreement, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(aii) and Section 9.1(f)), in exercising such using reasonable best efforts to obtain the PIPE Investment on the terms and subject to the conditions set forth in the PIPE Subscription Agreements. Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consent, waiver Consents of any Authority or other accommodation (including Persons necessary, proper or advisable to consummate the Required Consents) from transactions contemplated by this Agreement or the Additional Agreements; provided, however, that in the case of any such Consents of any Person that is (other than an Authority), ARYA and its Affiliates (including, for the avoidance of doubt, from and after the Closing, the Business Entities) shall not a Governmental Entitybe required to make any payments to secure any such Consent and shall not be required to amend, none modify or supplement any Contract to which such Consent may relate, and Amber GT Parent, Amber GT and their respective Affiliates (including, prior to the Closing, the Business Entities) shall not take any of the Group Companiesforegoing actions without ARYA’s prior written consent. Amber GT Parent shall bear the costs incurred in connection with obtaining, filing or delivering such Consents; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the Contributorspreparation of any such Consents. Each Party shall (A) make any appropriate filings pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event within ten (10) Business Days) following the date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Authority for additional information and documentary material that may be requested pursuant to the HSR Act. ARYA shall promptly inform Amber GT Parent REITof any communication between ARYA, on the one hand, and any Authority, on the other hand, and Amber GT Parent OP, Parent Sub, shall promptly inform ARYA of any communication between any Amber Entity or any Affiliate thereof, on the one hand, and any Authority, on the other hand, in either case, regarding any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to the transactions contemplated by this Agreement or any other Transaction DocumentAdditional Agreement; provided that, make for the avoidance of doubt, the foregoing shall not apply with respect to communications with any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of Taxing Authority following the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsClosing Date. Without limiting the foregoing, (Ax) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating the extent available at the time of filing thereof, the Parties agree to this Transaction or any request early termination of the parties hereto that is to be provided to any lenderapplicable waiting period under the HSR Act, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (By) the Group Companies each Party and their representatives respective Affiliates shall not engage extend any waiting period, review period or participate in comparable period under the HSR Act or enter into any meeting or discussion or proposed discussion agreement with any lenderAuthority not to consummate the transactions contemplated hereby or by the Additional Agreements, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of the RepresentativeARYA and Amber GT Parent. Nothing in this Section 6.3 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Business Entity or any entity, facility or asset of such Party or any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing measures set forth in the immediately preceding sentence with respect to such Party or the Contemplated Transactionswith respect to any other Party or any of its Affiliates, except with ARYA’s and Amber GT Parent’s prior written consent.
Appears in 2 contracts
Samples: Business Combination Agreement (ARYA Sciences Acquisition Corp IV), Business Combination Agreement (Amicus Therapeutics, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, and the Company and the Contributors shall will use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective as promptly as practicable after the Contemplated Transactions Agreement Date the Transactions, including (includingi) preparing and filing with applicable Governmental Entities as promptly as reasonably practicable all necessary applications, without limitationnotices, disclosures, petitions, filings (or draft filings, as applicable), ruling requests and other documents required under any Antitrust Laws and to satisfy as promptly as practicable the satisfaction, but not waiver, of the closing conditions condition set forth in Article 8 Section 7.01(c) (the “Required Approvals”), (ii) taking all steps as may be necessary to obtain all such Consents as promptly as reasonably practicable, and the entry into the Tax Matters Agreements(iii) obtaining any waivers, together qualifications, consents, certificates, clearances, and approvals required from third parties (other than Consents) in connection with the Member Guarantees consummation of the Transactions. Subject to its obligations under the foregoing and Capital Contribution Agreements that are exhibits theretoany other provision of this Agreement, Parent will control (in a manner consistent with this Section 6.03) and lead all communications and strategy relating to obtaining any Required Approvals, and the New Company Agreement)will not, and will cause the Company Subsidiaries and its directors and officers and direct its other Representatives not to, make any proposal to, or (except to the extent required by Law) any filings with, Governmental Entities in respect of any matter related to any Required Approvals without the prior written consent of Parent or its counsel (which shall not be unreasonably withheld, conditioned or delayed); provided that Parent shall keep the Company reasonably informed on a current basis, consult with and consider in good faith the views and comments of the Company in connection with such communications and strategy. Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributorsforegoing, Parent REITand the Company will, Parent OP, Parent Sub, or any of and will cause their respective Affiliatesdirectors, shall be obligatedofficers and employees to and direct their respective other Representatives to, except as otherwise provided give the other Party reasonable notice of, and the opportunity for it and its Representatives to participate in, all substantive meetings and telephone calls with any Governmental Entity in Annex E or Section 6.4(c) or Section 6.5, to incur respect of any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingRequired Approvals.
(b) Subject to In connection with the terms and conditions of this Agreementactions referenced in Section 6.03(a), each of Parent and the parties hereto Company will, and will cause their respective controlled Affiliates (which, in the case of Parent, shall use its reasonable best efforts be deemed to include SMP) to, (i) cooperate in all material respects with each other other, including providing Parent or its counsel with information and such assistance as Parent or its counsel may reasonably request, in connection with obtaining any consentcommunication, waiver filing or submission and in connection with any investigation or other accommodation (inquiry, including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and Action initiated by a private party; (ii) to the extent practicable, keep the other party Party and/or its counsel promptly informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates Party from, or given by such party Party to, any Governmental Entity or Government Official and of any communication received or given in connection with any Action by a private party, in each case, regarding any of the Transactions; (iii) to the extent practicable, consult with each other in advance of any meeting or conference regarding the Transactions with such Governmental Entity or Government Official or, in connection with any Action by a private party, with any other Person, and to the extent permitted by the applicable Governmental Entity, or other Person, give the other Party and/or its counsel the opportunity to attend and participate in such meetings and conferences; (iv) consider in good faith the views of the other Party and keep the other Party reasonably informed of the status of matters related to the Transactions; and (v) permit the other Party and/or its counsel to review in advance, with reasonable time and opportunity to comment, give reasonable consideration to the other Party’s comments thereon, and consult with each other in advance of any proposed submission, filing or material communication (and documents submitted therewith) intended to be given by it to a Governmental Entity or Government Official in connection with the Transactions; provided that materials may be redacted (x) as necessary to comply with applicable Law and (y) to remove references concerning (A) the valuation of the businesses of the Company and the Company Subsidiaries and (B) projections, estimates, budgets, forecasts, plans or other information of the Company (including commercially sensitive information and the Company Subsidiaries and other materials that the Special Committee evaluated in connection with the Transactions).
(c) The Company will give prompt written notice to Parent, and Parent will give prompt written notice to the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in Article VII, and such written notice will specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the Transactions to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; (iii) any material written notice from any Governmental Entity in connection with the Transactions; and (iv) any shareholder Action against the Company, any Company Subsidiary and/or their respective directors or officers relating to the Transactions; provided that the delivery of any notice pursuant to this Section 6.03(c) will not limit or otherwise affect the remedies available hereunder to Parent or the Company.
(d) Notwithstanding anything to the contrary in this Agreement, in no event will Parent or any of its Affiliates to, any lender, servicer or agent be required (and in connection with obtaining no event will the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction Company or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, Company Subsidiary agree without the prior written consent of the Representative, enter Parent) to take any action (including entering into any mergerconsent decree, acquisitionhold separate order or other arrangement), joint venture or debt to permit or equity financingsuffer to exist any material restriction, condition, limitation or requirement, in each case, that (when taken together with all other such actions, restrictions, conditions, limitations and requirements) would reasonably be expected to materially impairresult in a material adverse effect on the business, delay operations or prevent consummation financial results of the Financing Parent and any Parent Subsidiaries or the Contemplated TransactionsSurviving Company and its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Myovant Sciences Ltd.), Agreement and Plan of Merger (Myovant Sciences Ltd.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use reasonable its good faith efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, but not waiverincluding the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the conditions precedent to consummating the transactions contemplated by this Agreement. Each party agrees to cooperate fully with the other party in assisting it to comply with this Section 5.11. Without limiting the 25 30 generality of the closing conditions set forth foregoing, each party hereto shall defend and cooperate with each other party in Article 8 defending any legal proceedings, whether judicial or administrative and whether brought derivatively or on behalf of third parties, challenging this Agreement or the entry into consummation of the Tax Matters Agreementstransactions contemplated hereby. No consideration, together with whether such consideration shall consist of the Member Guarantees and Capital Contribution Agreements that are exhibits theretopayment of money or shall take any other form, and for any such consent, waiver or agreement necessary to the New consummation of the transactions contemplated hereby shall be given or promised by the Company Agreement)without the prior written approval of Buyer. Notwithstanding the foregoing foregoing, nothing contained herein shall require (a) any party hereto or anything any of their respective Affiliates to sell, transfer, divest or otherwise dispose of any of its respective business, assets or properties in connection with this Agreement or any of the transactions contemplated hereby, (b) Buyer to enter into any agreement or other arrangement for the contrary financing of the transactions contemplated hereby on terms that are not satisfactory to Buyer, in its sole discretion or (c) any party hereto to initiate any litigation, make any substantial payment or incur any material economic burden (including the preceding sentence as a result of this Section 6.4(a) and Section 9.1(f)any divestiture), in exercising such reasonable efforts except for payments a party presently is contractually obligated to make, to obtain any consent, waiver waiver, authorization, order or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingapproval.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Gryphon Holdings Inc), Merger Agreement (Gryphon Holdings Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, and the Company and the Contributors shall will use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective as promptly as practicable after the Contemplated Transactions Agreement Date the Transactions, including (includingi) preparing and filing with applicable Governmental Entities as promptly as reasonably practicable all necessary applications, without limitationnotices, the satisfactiondisclosures, but not waiverpetitions, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreementsfilings, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoruling requests, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) other documents and Section 9.1(f)), in exercising such reasonable efforts to obtain as promptly as practicable all Permits necessary, (ii) taking all steps as may be necessary to obtain all such Permits as promptly as reasonably practicable, and (iii) obtaining any consentwaivers, waiver or other accommodation (including the Required Consents) qualifications, consents, certificates, clearances, and approvals required from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment third parties (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwisePermits) or agree or commit to any in connection with the consummation of the foregoingTransactions.
(b) Subject to In connection with the terms and conditions of this Agreementactions referenced in Section 6.03(a), each of Parent and the parties hereto Company will, and will cause their respective controlled Affiliates (which, in the case of Parent, shall use its reasonable best efforts be deemed to include Sumitomo) to, (i) cooperate in all material respects with each other in connection with obtaining any consentcommunication, waiver filing or submission and in connection with any investigation or other accommodation (inquiry, including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and Action initiated by a private party; (ii) keep the other party Party and/or its counsel promptly informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates Party from, or given by such party Party to, any Governmental Entity or Governmental Official and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions; (iii) consult with each other in advance of any meeting or conference regarding the Transactions with such Governmental Entity or Governmental Official or, in connection with any Action by a private party, with any other Person, and to the extent permitted by the applicable Governmental Entity, Governmental Official, or other Person, give the other Party and/or its counsel the opportunity to attend and participate in such meetings and conferences; (iv) consider in good faith the views of the other Party and keep the other Party reasonably informed of the status of matters related to the Transactions; and (v) permit the other Party and/or its counsel to review in advance, with reasonable time and opportunity to comment, give reasonable consideration to the other Party’s comments thereon, and consult with each other in advance of any proposed submission, filing or communication (and documents submitted therewith) intended to be given by it to a Governmental Entity or Governmental Official in connection with the Transactions; provided that materials may be redacted (x) as necessary to comply with applicable Law and (y) to remove references concerning the valuation of the businesses of the Company and the Company Subsidiaries.
(c) The Company will give prompt written notice to Parent, and Parent will give prompt written notice to the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in Article VII, and such written notice will specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the Transactions to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; (iii) any material written notice from any Governmental Entity in connection with the Transactions; (iv) any shareholder Action against the Company, any Company Subsidiary and/or their respective directors or officers relating to the Transactions; provided that the delivery of any notice pursuant to this Section 6.03(c) will not limit or otherwise affect the remedies available hereunder to Parent or the Company.
(d) Notwithstanding anything to the contrary in this Agreement, in no event will Parent or any of its Affiliates to, any lender, servicer or agent be required (and in connection with obtaining no event will the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction Company or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, Company Subsidiary agree without the prior written consent of the Representative, enter Parent) to take any action (including entering into any mergerconsent decree, acquisitionhold separate order or other arrangement), joint venture or debt to permit or equity financingsuffer to exist any material restriction, condition, limitation or requirement, that (when taken together with all other such actions, restrictions, conditions, limitations and requirements) would reasonably be expected to materially impairresult in a material adverse effect on the business, delay operations or prevent consummation financial results of the Financing or the Contemplated TransactionsSurviving Company and its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto agrees to use its respective reasonable best efforts, and to cooperate with each other party hereto to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, appropriate or desirable to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) taking, or causing to be taken, all actions, and doing, or causing to be done, all things necessary, proper or advisable under applicable Laws to satisfy the Offer Conditions and the conditions set forth in Article VII and consummate and make effective the Transactions as promptly as practicable, including using its reasonable best efforts to obtain any requisite approvals, consents, authorizations, orders, exemptions or waivers by any third Person, the failure of which to so obtain would be materially adverse to the ability of the company to consummate the Transactions at or prior to the End Date (provided that in respect of Contracts between the Company or any of the Subsidiaries with any third Person, none of the parties hereto shall be required to make or agree to make any payment or accept any material conditions or obligations unless such payment, condition or obligation is contingent upon the consummation of the Merger).
(b) In furtherance and not in limitation of the foregoing, the parties hereto agree to (A) make an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby within 10 business days following the date of this Agreement (“Merger Notification Filings”), (B) as reasonably promptly as practicable, make all other required or advisable filings required by any Applicable Law that is designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”) with respect to the transactions contemplated, and (C) not to delay or consummate the extension of any waiting period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other Governmental Entity, except with the prior written consent of the other parties hereto. Each of Parent and the Company shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Antitrust law and use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Antitrust Law as soon as possible. The parties hereto shall promptly supply one another upon request with any information that may be required in order to make such filings or obtain such consents and approvals. Each party hereto shall (i) consult and cooperate with one another, and consider in good faith the views of one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Law, (ii) coordinate with one another in preparing and exchanging such materials and (iii) promptly provide each other party hereto (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such first party to any Governmental Entity in connection with this Agreement; provided further, that with respect to any such analyses, appearances, presentations, memoranda, briefs, arguments, opinions or proposals or such filings, presentations or submissions, each of Parent and the Company need not supply the other (or its counsel) with copies (or in case of oral presentations, a summary) to the extent that any Applicable Law requires such party or its subsidiaries to restrict or prohibit access to any such information. Without limiting the generality of the foregoing, each party shall provide to the other (or the other’s respective advisors) copies of all correspondence between such party and any Governmental Entity relating to the Antitrust Laws with respect to the Transactions. The parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 6.4 as “outside counsel only,” it being understood that all filings provided pursuant to this Section 6.4(b) shall be provided on an “outside counsel only” basis unless otherwise designated by the party providing such material. Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. In addition, to the extent reasonably practicable, all discussions, telephone calls, and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of all parties.
(c) Each party hereto will notify the other promptly upon the receipt of (i) any comments from any officials of any Governmental Entity in connection with any Merger Notification Filings made pursuant hereto, (ii) any request by any officials of any Governmental Entity for amendments or supplements to any Merger Notification Filings made pursuant to, or information provided to comply in all material respects with, any Applicable Law and (iii) any proposal by a Governmental Entity regarding a settlement of any investigation. Each party hereto will respond promptly to and comply with any request for information relating to this Agreement or the Merger Notification Filings from any Governmental Entity charged with enforcing, applying, administering or investigating any Antitrust Laws. Whenever any event occurs that is required to be set forth in an amendment or supplement to any Merger Notification Filing made pursuant to Section 6.4(b), each party hereto will promptly inform the other parties of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or supplement.
(d) Each of Parent and the Company shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under any applicable Antitrust Laws. Parent and the Company shall take any and all of the following actions to the extent necessary to cause the expiration of the notice periods under Antitrust Laws with respect to such transactions and to obtain the approval of any Governmental Entity with jurisdiction over the enforcement of any Applicable Law regarding the Transactions: (i) cooperate entering into negotiations, (ii) providing information required by Applicable Law and (iii) substantially complying with any “second request” for information pursuant to Antitrust Laws.
(e) If any Legal Proceeding is instituted (or threatened to be instituted) challenging the Transactions as violative of any Antitrust Law, it is expressly understood and agreed that Parent and the Company will take any and all reasonable steps not prohibited by Applicable Law to avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date, including defending through litigation any claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ or any other applicable Governmental Entity or any private party under any Antitrust Law and including by using its reasonable best efforts to pursue all available avenues of administrative and judicial appeal.
(f) Notwithstanding anything in this Agreement to the contrary, none of Parent, Merger Sub or the Company shall be under any obligation to make proposals, execute or carry out agreements or submit to Orders providing for (i) the sale, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent or the Company or any of their respective Affiliates, (ii) the imposition of any limitation or restriction on the ability of Parent or any of its Affiliates to freely conduct their business or, following the Closing, the Business or own such assets or (iii) the holding separate of the shares of Company Capital Stock or any limitation or regulation on the ability of Parent or any of its Affiliates to exercise full rights of ownership of the shares of Company Capital Stock, (any of the foregoing, an “Antitrust Restraint”) in each of (i) through (iii) if any such action would be material to the combined business of Parent and the Surviving Corporation following the Closing (any such non-material action being an “Excluded Antitrust Restraint”); provided further, however that, at any time prior to the Offer Acceptance Time, Parent shall not, and shall cause its subsidiaries not to, enter into any definitive Contract with any third Person for the acquisition by Parent or any such subsidiary, whether by merger, purchase of stock, purchase of assets, tender offer or otherwise, of the business of any third Person which, either directly or through one or more of its subsidiaries, is a provider of software or software-as-a-service solutions if doing so could, as determined based on consultation with outside antitrust counsel, reasonably be expected to materially increase the likelihood of any Legal Proceeding described in clause (e) or an Antitrust Restraint (other than an Excluded Antitrust Restraint). Nothing in this Section 6.4(f) shall require the Company or any of it its subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing.
(g) Nothing in this Section 6.4 shall limit a party’s right to terminate the Agreement pursuant to Section 8.1(c) so long as such party has until such date complied in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to obligations under this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPSection 6.4.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Merger Agreement (IntraLinks Holdings, Inc.), Merger Agreement (Synchronoss Technologies Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedof this Agreement, in addition to the matters otherwise specifically set forth in this Article V, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use reasonable efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law laws and regulations to consummate and make effective the transactions contemplated by this Agreement including, without limitation, (i) the preparation and filing of all other forms, registrations and notices required to be filed to consummate the Merger and the transactions hereby contemplated and the taking of such actions as promptly as practicable the Contemplated Transactions are necessary to obtain any requisite approvals, consents, orders, exemptions, or waivers (including, without limitation, any Target Consents) by any public or private third party, (ii) such actions as may be required to permit, on or prior to the satisfactionEffective Time, but not waiver, of the closing Acquiror Series B Preferred Shares to be issued pursuant to the terms and conditions set forth in Article 8 hereof and the entry into Acquiror Common Shares to be issued upon conversion to be listed on the Tax Matters AgreementsNYSE (subject to official notice of issuance), together and (iii) such actions as may be reasonable to cause, concurrently with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoEffective Time, the delisting of Target's securities from the OTC Bulletin Board and the New Company Agreement). Notwithstanding deregistration of Target's securities under the foregoing or anything 1934 Act; provided, however, that in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts order to obtain any consent, waiver approval, waiver, license, permit, authorization, registration, qualification or other accommodation permission or action referred to in clause (including the Required Consentsi) from of this sentence, no party shall be required to (A) pay any Person that is not a Governmental Entityconsideration, none to divest itself of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Subany of, or any of their respective Affiliatesotherwise rearrange the composition of, shall be obligated, except as otherwise provided in Annex E its assets or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement conditions or any other Transaction Documentrequirements which are materially adverse or burdensome or (B) amend, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree to amend, in any material respect any Contract. Each party shall promptly consult with the other and provide any necessary information with respect to, and provide the other (or commit to its counsel) with copies of, all filings made by such party with any of the foregoing.
(b) Subject to the terms and conditions of Governmental Entity in connection with this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including Merger and the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions hereby contemplated.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Union Property Investors Inc), Merger Agreement (Kranzco Realty Trust)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITSeller, Parent OP, Parent Sub, Buyer and the Company and the Contributors shall use commercially reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 7). Each of Seller, Buyer and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such shall use commercially reasonable efforts to obtain any consent, waiver consents of all Governmental Entities or other accommodation (third parties necessary to consummate the transactions contemplated by this Agreement, including with respect to the Required Consents) from leases included among the Material Real Property Leases that are set forth on Schedule 6.4. All costs incurred in connection with obtaining such consents shall be borne by the Party incurring such costs and, in no event, shall Seller, any Person that is not a Governmental Entity, none of its Affiliates or any of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall Companies be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, required to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment payments (other than to routine administrative fees, contractual change of control payments and attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise’ fees) or agree provide other types of consideration in order to seek or commit to facilitate the obtaining of any of the foregoingsuch consents.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Proceeding and, if an injunction or other order is issued in any such action, suit or other proceedingProceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(c) Seller and Buyer shall permit counsel for the other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate in such meeting or discussion.
(d) Parent REITNeither Seller nor any Group Company shall have any liability to Buyer directly arising out of or relating to the failure to obtain any consents or waivers (including any waivers of any rights of first refusal, Parent OP and Parent Sub shall notrights of first offer or similar rights) that are contained or contemplated by the Contracts listed on Schedule 3.6(a) hereto in connection with the transactions contemplated by this Agreement or because of the termination of any contract as a result thereof, and no such failure or termination shall not permit result in the failure of any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionscondition set forth in Article 7.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Susser Petroleum Partners LP)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement). Without limiting the entry into generality of the Tax Matters Agreementsforegoing, together each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents. The Company shall bear the costs incurred in connection with obtaining such Consents; provided, however, that, subject to Section 8.6, each Party shall bear its out-of-pocket costs and expenses in connection with the Member Guarantees preparation of any such Consents. Bannix shall promptly inform the Company of any communication between Bannix, on the one hand, and Capital Contribution Agreements that are exhibits theretoany Governmental Entity, on the other hand, and the New Company Agreement). Notwithstanding shall promptly inform Bannix of any communication between the foregoing or anything in this Agreement to Company, on the contrary (including the preceding sentence of this Section 6.4(a) one hand, and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none on the other hand, in either case, regarding any of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to transactions contemplated by this Agreement or any Ancillary Document. Without limiting the generality of the foregoing, no Party shall enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Bannix and the Company. Nothing in this Section 5.2 obligates any Party or any of its Affiliates to agree to (a) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company or any entity, facility or asset of such Party or any of its Affiliates, (b) terminate, amend or assign existing relationships and contractual rights or obligations, (c) amend, assign or terminate existing licenses or other Transaction Documentagreements, make any payment or (d) enter into new licenses or other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agreements. No Party shall agree or commit to any of the foregoingforegoing measures with respect to any other Party or any of its Affiliates, except with Bxxxxx’s and the Company’s prior written consent.
(b) Subject to From and after the terms and conditions date of this Agreement, each Agreement until the earlier of the parties hereto Closing or termination of this Agreement in accordance with its terms, Bannix, on the one hand, and the Company, on the other hand, shall use its give counsel for the Company (in the case of Bannix) or Bannix (in the case of the Company), a reasonable best efforts opportunity to (i) cooperate review in all material respects with each advance, and consider in good faith the views of the other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates towith, any lenderproposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or the Ancillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, servicer either in person or agent by telephone with any Governmental Entity in connection with obtaining the Required Consents. Without limiting transactions contemplated by this Agreement unless it consults with, in the foregoingcase of Bannix, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any the Company, or, in the case of the parties hereto that is Company, Bannix in advance and, to be provided the extent not prohibited by such Governmental Entity, gives, in the case of Bannix, the Company, or, in the case of the Company, Bannix, the opportunity to any lender, servicer or agent in connection with obtaining a Required Consent attend and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any such meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPdiscussion.
(c) Subject Notwithstanding anything to the terms and conditions herein providedcontrary in the Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding that this Section 5.2 conflicts with any other impediment covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the consummation extent of the Contemplated Transactionssuch conflict.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Business Combination Agreement (Bannix Acquisition Corp.), Business Combination Agreement (Bannix Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent SubRGHI, the Company Buyer and the Contributors shall Company agrees to use its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement, including (includingi) cooperation in the preparation and filing of any filings that may be required under the HSR Act and any amendments thereto; provided, without limitationhowever, that the satisfaction, but Buyer will not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement be required to agree to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver sale or other accommodation (including disposal or divestiture by the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Buyer or any of their respective Affiliatesits Affiliates of any particular or specified assets, shall category of assets or businesses, nor will the Buyer be obligatedrequired to agree not to compete in any geographic area or line of business, except as otherwise provided in Annex E or Section 6.4(c(ii) or Section 6.5making all filings, applications, statements and reports to incur any liabilityall Governmental Authorities, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants Self-Regulatory Organizations and other advisors)Persons which are required to be made prior to the Closing Date by or on behalf of RGHI, offer or grant any accommodation (financial or otherwise) or agree or commit to the Company, any of the foregoingSubsidiaries, the Buyer or Merger Company pursuant to any applicable Law in connection with this Agreement and the transactions contemplated hereby, (iii) the compliance with all requirements under the HSR Act applicable to the transactions contemplated hereby, (iv) contesting any Legal Proceeding relating to the transactions contemplated hereunder, (v) consummating all of the financing transactions contemplated by the commitment letters, term sheets and/or "highly-confident" letters listed on Schedule 4.6, and (vi) the execution of any additional instruments necessary to consummate the transactions contemplated hereby. RGHI and the Buyer each agrees to use reasonable best efforts to make, or cause to be made, all filings applicable to them or their ultimate parent entities of notification and report forms pursuant to the HSR Act with respect to the transactions contemplated hereunder within fifteen Business Days after the date of this Agreement (or, if applicable as a result of any change in requirements under the HSR Act, as promptly as practicable after such requirement becomes applicable) and to supply promptly any additional information and documentary material that may be requested pursuant to the HSR Act.
(b) Subject to the terms provisions of Section 7.3, all fees, costs and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other expenses required in connection with obtaining the application for or prosecution of any consent, waiver approval, authorization, registration, filing or other accommodation (including the Required Consents) from any Person as may be necessary submission or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis respect of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents action relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding Permits issued by any Governmental Entity or other Person is commenced which questions Authorities shall be borne by the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against party making such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionsapplication.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Equity Purchase and Merger Agreement (Refco Inc.), Equity Purchase and Merger Agreement (Refco Information Services, LLC)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall Parties agree to use all reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws and regulations to consummate and make effective as promptly as practicable the Contemplated Transactions (transactions contemplated by this Agreement, including, without limitation, (i) to obtain consents of all Governmental Entities necessary to consummate the satisfactiontransactions contemplated by this Agreement, including but not waiver, limited to any necessary consents relating to the change of beneficial ownership of the closing conditions set forth Company or, to the extent applicable, any other Target Company, (ii) cooperation in Article 8 the preparation and filing of any filings that may be required under the entry into the Tax Matters Agreements, together with the Member Guarantees HSR Act and Capital Contribution Agreements that are exhibits any amendments thereto, (iii) the compliance with all requirements under the HSR Act applicable to the transactions contemplated hereby, (iv) requesting early termination of the applicable waiting period under the HSR Act and (v) the New Company Agreement). Notwithstanding execution of any additional instruments necessary to consummate the foregoing or anything transactions contemplated hereby; provided, however, that nothing in this Agreement Section 4.4 shall require, or be construed to require, Buyer or any of its Affiliates to (A) sell, dispose, divest, discontinue or limit any assets, businesses or interests of Buyer or any of its affiliates (before the contrary (including the preceding sentence Closing) or of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group CompaniesBuyer, the Contributors, Parent REIT, Parent OP, Parent Sub, Company or any of their respective Affiliatesaffiliates (after the Closing), shall be obligated, except as otherwise provided in Annex E or Section 6.4(c(B) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment restrictions or changes in the operations of any of Buyer's assets, business or interests which could reasonably be expected to materially and aversely impact the economic or business benefits to Buyer of the transactions contemplated by this Agreement Agreement, or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwiseC) or agree or commit to any material modification or waiver of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other . All costs incurred in connection with obtaining such consents, including, without limitation, the HSR Act filing fee, shall be shared equally by Buyer and the Company.
(b) The Parties each agree to make, or cause to be made, an appropriate filing of a notification and report form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement (which shall include a request for early termination of the applicable waiting period under the HSR Act) as soon as practicable after the date hereof, but in any consent, waiver or other accommodation event no later than five (including 5) Business Days after the Required Consents) from date of this Agreement and to supply promptly any Person as additional information and documentary material that may be necessary or desirable requested pursuant to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsHSR Act. Without limiting the foregoing, (A) Parent OP the Company, Buyer and Parent REIT their respective affiliates shall be given no less than three (3) Business Days not extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity not to review and comment on all materials or documents relating to this Transaction or any consummate the transactions contemplated hereby, except with the prior written consent of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPother Parties.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use commercially reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Emeritus Corp\wa\), Unit Purchase Agreement (Emeritus Corp\wa\)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, and the Company and the Contributors shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective as promptly as practicable after the Contemplated Transactions date of this Agreement the transactions contemplated by this Agreement, including (includingi) preparing as promptly as practicable all necessary applications, without limitationnotices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the transactions contemplated by this Agreement (collectively, the satisfaction“Governmental Approvals”), but not waiver(ii) as promptly as practicable taking all steps as may be necessary to obtain all such Governmental Approvals, (iii) the obtaining of all other necessary Consents from third parties, and (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the closing conditions set forth in Article 8 Merger and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements other transactions contemplated by this Agreement; provided that are exhibits thereto, (x) no party shall be required to pay (and the New Company Agreement). Notwithstanding and its Subsidiaries shall not pay or agree to pay without the foregoing prior written consent of Parent) any fee, penalty or anything in other consideration to any third party for any Consent required for the consummation of the transactions contemplated by this Agreement to under any Contract and (y) the contrary (including the preceding sentence consent of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree required with respect to any amendment or modification to this Agreement any Contract in connection with obtaining any such Consent that is adverse in any material respect to Parent or the Company or any other Transaction Document, make any payment (other than to attorneys, accountants Company Subsidiary. In furtherance and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any not in limitation of the foregoing.
, each party hereto agrees to (bA) Subject make an appropriate and complete filing, if required by Law, of a Notification and Report Form pursuant to the terms and conditions HSR Act with respect to the transactions contemplated hereby within ten (10) Business Days of the date of this Agreement, each (B) make all other required filings pursuant to other Regulatory Laws with respect to the transactions contemplated hereby as reasonably promptly as practicable and (C) take or agree to take any actions reasonably necessary to consummate the transactions contemplated by this Agreement, including making divestitures of the parties Parent’s or the Company’s assets or businesses and agreeing to any other restrictions on the businesses of either Parent or the Company, subject to the limitations in Section 6.03(c) of this Agreement. Except with the prior written consent of the other party, each party hereto agrees not to enter into any agreement with the FTC or the DOJ that would reasonably be expected to delay the consummation of the transactions contemplated by this Agreement. Parent and the Company shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Regulatory Law and use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as promptly as practicable after the date of this Agreement.
(b) Each of Parent and the Company shall, in connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Laws, (i) cooperate in all material respects with each other in connection with obtaining any consentcommunication, waiver filing or submission and in connection with any investigation or other accommodation (inquiry, including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party to, the Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other U.S. or other Governmental Entity and of its Affiliates to, any lender, servicer communication received or agent given in connection with obtaining the Required Consents. Without limiting the foregoingany proceeding by a private party, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or in each case regarding any of the parties hereto transactions contemplated hereby; (iii) consult with each other in advance of any meeting, conference, or material telephone call with the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other Governmental Entity or other person, give the other party and/or its counsel the opportunity to attend and participate in such meetings, conferences, and telephone calls; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Entity; provided that is materials may be redacted to remove references concerning the valuation of the businesses of the Company and its Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to any lender, servicer or agent in connection with obtaining a Required Consent the other under this Section 6.03(b) as “Antitrust Counsel Only Material.” Such materials and any such materials the information contained therein shall be revised given only to reflect any reasonable comments the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without Company, as the participation of Parent REIT case may be) or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPits legal counsel.
(c) Subject In furtherance and not in limitation of the covenants of the parties contained in Sections 6.03(a) and 6.03(b), Parent and the Company shall take any and all steps not prohibited by Law to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date, including defending through litigation on the merits any claim asserted in any court with respect to the terms and conditions herein providedtransactions contemplated by this Agreement by the FTC, in the event DOJ or any claim, action, suit, investigation or other proceeding by any applicable Governmental Entity or other Person is commenced which questions any private party; and (ii) avoid or eliminate each and every impediment under any Regulatory Law so as to enable the validity or legality Closing to occur as promptly as practicable after the date of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate this Agreement (and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such actionevent no later than the End Date); provided, suit however, that, notwithstanding anything else in this Agreement, in no event shall Parent be required to (and the Company shall not without Parent’s prior written consent) take or other proceedingcommit to any actions except as would not reasonably be expected to be materially adverse to Parent and its Subsidiaries, to use reasonable efforts to have such injunction taken as a whole, or other order liftedthe Company and its Subsidiaries, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstaken as a whole.
(d) Parent REITThe Company shall give prompt written notice to Parent, Parent OP and Parent Sub shall notgive prompt written notice to the Company, and shall not permit of (i) the commencement, or to the Knowledge of such party, the threatened commencement of any Transaction Litigation, (ii) the occurrence, or failure to occur, of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture event which occurrence or debt failure to occur has resulted in or equity financing, that would reasonably be expected to materially impair, delay result in the failure to satisfy or prevent consummation be able to satisfy any of the Financing conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied, (iii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; and (iv) any written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, neither the delivery of any notice pursuant to this Section 6.03(d), nor any knowledge that a Party or its Affiliates may have acquired, nor could have acquired (in each case, whether before or after the date of this Agreement or the Contemplated TransactionsClosing Date), nor any investigation or diligence by a Party or its Affiliates, shall limit or otherwise affect the rights of any party or remedies available thereto.
Appears in 2 contracts
Samples: Merger Agreement (New Residential Investment Corp.), Merger Agreement (Home Loan Servicing Solutions, Ltd.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITContributor, Parent OP, Parent Sub, Acquiror and the Company and the Contributors shall use commercially reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 7). Each of Contributor, Acquiror and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such shall use commercially reasonable efforts to obtain any consent, waiver consents of all Governmental Entities or other accommodation (including third parties necessary to consummate the Required Consents) from any Person that is not a Governmental Entitytransactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents shall be borne by the Party incurring such costs and, none of the Group Companiesin no event, the Contributorsshall Contributor, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall its Affiliates or the Company be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, required to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment payments (other than to routine administrative fees, contractual change of control payments and attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise’ fees) or agree provide other types of consideration in order to seek or commit to facilitate the obtaining of any of the foregoingsuch consents.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Proceeding and, if an injunction or other order is issued in any such action, suit or other proceedingProceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(dc) Parent REIT, Parent OP Contributor and Parent Sub Acquiror shall notpermit counsel for the other Party reasonable opportunity to review in advance, and shall not permit any of their respective controlled Affiliates to, without consider in good faith the prior written consent views of the Representativeother Party in connection with, enter into any mergerproposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Each of Contributor and Acquiror agrees not to participate in any substantive meeting or discussion, acquisitioneither in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other Party in advance and, joint venture to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate in such meeting or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsdiscussion.
Appears in 2 contracts
Samples: Contribution Agreement (Sunoco LP), Contribution Agreement
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each from the date hereof until the earlier of Parent REIT, Parent OP, Parent Subthe termination of this Agreement and the Closing Date, the Company and the Contributors shall use its commercially reasonable efforts to (a) take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not a waiver, of the closing conditions set forth in Article 8 Section 8.02); and the entry into the Tax Matters Agreements(b) seek all consents, together with the Member Guarantees waivers and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Documentapprovals, make any payment filings and deliver all notifications pursuant to any Material Contracts in connection with this Agreement and the consummation of the transactions contemplated by this Agreement so as to maintain and preserve the benefits to the Surviving Company of such Material Contracts, in each case of clauses (other than to attorneys, accountants a) and other advisors(b), offer or grant at the Company’s cost; provided, that the Company shall not be obligated to pay any accommodation amount under clause (financial or otherwisea) or (b) that it is not otherwise contractually obligated to pay. The parties acknowledge and agree that (i) nothing contained in this Section 6.03 shall limit, expand or commit otherwise modify in any way any efforts standard explicitly applicable to any of the foregoing.
Company’s obligations under this Agreement and (bii) Subject to the terms and conditions receipt of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consentconsents, waivers or approvals required contemplated in Section 6.03(b) shall not, in and of itself, constitute a condition to consummate the Contemplated Transactions and (ii) keep Securities Purchase Closing or the other party informed Merger Closing. The Company shall reasonably cooperate with the Parent in all material respects and on a reasonably timely basis its procurement of any material communication received representations and warranties insurance policy (the “R&W Insurance Policy”), which may be procured by such party or any of the Parent in its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent sole discretion in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions contemplated hereunder.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Transaction Agreement (Fortive Corp), Transaction Agreement
Efforts to Consummate. (a) Subject to the terms and conditions herein providedhereof, each of Parent REIT, Parent OP, Parent Sub, the Company Parties hereto agrees (and the Contributors shall cause its respective Subsidiaries) to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 transactions contemplated by this Agreement and the entry into the Tax Matters AgreementsAncillary Agreements to which it is a party, together and to cooperate with each other in connection with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoforegoing, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use using its reasonable best efforts to (i) cooperate obtain all necessary Consents from other parties to material agreements, leases and other contracts, including those set forth in Section 3.04 of the Company Disclosure Letter, (ii) prepare, execute and deliver such instruments and take or cause to be taken such actions as any other party shall reasonably request, (iii) obtain all material respects with each necessary Consents from Governmental Entities as are required to be obtained under any applicable Law, (iv) lift or rescind any injunction or restraining order or other order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby and (v) effect any necessary registrations and filings and submissions of information requested or required by Governmental Entities, including those contemplated by or required in connection with obtaining the performance of the obligations contained in Section 1.10.
(b) The Parties shall use their respective reasonable best efforts to resist, contest or defend any consentsuit, waiver claim, action or proceeding (including administrative or judicial actions and proceedings) challenging the Merger or the completion of the transactions contemplated hereby. Subject to applicable Law and the instructions of any Governmental Entity, the Parties shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication written communications received by such party Party or any of its Affiliates fromtheir respective subsidiaries, or given by such party or from any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP Governmental Entity and/or Third Party with respect thereto to such transactions, and, to the extent practicable under the circumstances, shall provide the other Party and (B) its counsel with the Group Companies and their representatives shall not engage or opportunity to participate in any meeting or discussion or proposed discussion with any lenderGovernmental Entity in respect of any filing, servicer investigation or agent for other inquiry in connection with the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions contemplated hereby.
(c) Subject to In connection with and without limiting the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality generality of the Contemplated Transactions or seeks damages in connection therewithclause (v) of Section 5.06(a), each of the parties Parties hereto agrees shall make or cause to cooperate be made, in consultation and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued cooperation with the others and as promptly as practicable after the date of this Agreement (but in any such actionevent, suit or other proceedingwithin ten (10) Business Days following the date of this Agreement), all necessary registrations, declarations, notices and filings relating to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding the Merger with any other impediment to the consummation of the Contemplated TransactionsGovernmental Entities under any other antitrust, competition, trade regulation or similar Laws.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Mod Pac Corp), Merger Agreement (Mod Pac Corp)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, Contributor, SUN LLC and each of Parent REITAcquiror Party shall use, Parent OPand Contributor or Retail Parent, Parent Subas applicable, shall cause the Company Retail Entities and the Contributors shall use Contributor Group, as applicable, to use, commercially reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated transactions contemplated by this Agreement (including the Pre-Closing Transactions (including, without limitation, and the satisfaction, but not waiver, of the closing conditions set forth in Article 8 8). Contributor, SUN LLC and each Acquiror Party shall use, and Contributor or Retail Parent, as applicable, shall cause the Retail Entities and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoContributor Group to use, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement Acquiror shall cause SUN LLC and each Acquiror Party to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))use, in exercising such commercially reasonable efforts to obtain any consent, waiver consents of all Governmental Entities or other accommodation third parties necessary to consummate the transactions contemplated by this Agreement (including the Required Consents) from Pre-Closing Transactions). All costs incurred in connection with obtaining such consents shall be borne by the Party incurring such costs and, in no event, shall Contributor, any Person that is not a Governmental Entity, none of its respective Affiliates or any member of the Contributor Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall Subject Entity be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, required to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment payments (other than to routine administrative fees, contractual change of control payments and attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise’ fees) or agree provide other types of consideration in order to seek or commit to facilitate the obtaining of any of the foregoingsuch consents.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Proceeding and, if an injunction or other order is issued in any such action, suit or other proceedingProceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(dc) Parent REIT, Parent OP Contributor and Parent Sub the Acquiror Parties shall notpermit counsel for the other Party reasonable opportunity to review in advance, and shall not permit any of their respective controlled Affiliates to, without consider in good faith the prior written consent views of the Representativeother Party in connection with, enter into any mergerproposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Contributor and each Acquiror Party agrees not to participate in any substantive meeting or discussion, acquisitioneither in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other Party in advance and, joint venture to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate in such meeting or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsdiscussion.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Energy Transfer Partners, L.P.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, including, but not waiverlimited to, the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the closing conditions precedent to consummating the transactions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))and, in exercising such reasonable efforts the case of Pxxxxxx, obtaining financing to obtain any consent, waiver or other accommodation (including consummate the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, transaction. Each party agrees to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, cooperate fully with each of the other parties hereto shall use its reasonable best efforts in assisting them to (i) cooperate in all material respects comply with each other in connection with obtaining any consentthe provisions of this Section, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity governmental body or other Person person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated by this Agreement or seeks damages in connection therewith, each of the parties hereto agrees agree to cooperate and use their reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding and, if proceeding. If an injunction or other order is issued in any such action, suit or other proceeding, the parties agree to use their reasonable best efforts to have such injunction or other order lifted. Notwithstanding the foregoing, no party hereto shall be required to make any substantial payment or incur any material economic burden, other than a payment otherwise required of it, to obtain any consent, waiver, authorization order or approval, and if, despite its efforts, any party is unable to cooperate reasonably regarding obtain any material consent, waiver, authorization, order or approval, the other impediment parties for whose benefit the consent, waiver, authorization, order or approval is to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, be obtained may terminate this Agreement and shall not permit any of their respective controlled Affiliates tohave no liability therefor, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsexcept as is provided in Section 10.2.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each party shall use Commercially Reasonable Efforts to take or cause to be taken all actions and do or cause to be done all things required under all applicable Laws, in order to consummate the transactions contemplated hereby and by the Related Documents.
(b) From and after the date hereof until the earlier of the parties hereto Closing or the termination of this Agreement pursuant to Article XII, Purchaser, the Stockholder, and each Seller shall use Commercially Reasonable Efforts to satisfy all of the conditions precedent to its reasonable best efforts obligations set forth in Article X hereof and to (i) cause the Closing to occur, including making any necessary filings and submissions with all applicable Governmental Entities and other Persons, and procuring written consents of all Persons necessary for the assignment to Purchaser of the Purchased Assets, including the Assigned Permits, and shall reasonably cooperate in all material respects with each other in connection with obtaining therewith; provided, however, that nothing in this Section 7.3 shall require any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party to waive any conditions precedent to its obligations pursuant to Article X or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsto amend this Agreement. Without limiting the foregoing, (A) Parent OP each of the Sellers and Parent REIT the Stockholder shall be given no less than three (3) Business Days execute and deliver each Related Document to review and comment on all materials which it is a party. In the event the assignment or documents relating to this Transaction or transfer of any of the parties hereto Assigned Permits (other than those Assigned Permits that are referenced on Schedule 10.1(a)) is to be provided unlawful or is not permissible under any agreement, or under any Law, such terms for the purposes of this Agreement with respect to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials Assigned Permit shall be revised deemed to reflect any reasonable comments mean and require (i) the Sellers’ relinquishment of Parent REIT all its right, title, benefit and Parent OP with respect thereto interest in and to and authority under, such Assigned Permits as of the Closing and (Bii) the Group Companies issuance or grant to Purchaser by the appropriate Governmental Entity of an Assigned Permit conferring upon Purchaser, as of the Closing, all right, title, benefit, interest and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lenderauthority at least equal to that relinquished by the Sellers, servicer or agent for as the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPcase may be.
(c) Subject In the event that any Permits required to be made or obtained prior to the terms Closing Date from any Governmental Entities are not made or obtained at such time, but all other conditions set forth in Article X are satisfied (other than (i) conditions which, by their nature, are to be satisfied on the Closing Date, and conditions herein provided(ii) Section 10.1(a)), the parties shall cooperate in good faith with each other and use Commercially Reasonable Efforts in formulating and implementing mutually acceptable alternatives (if any) that permit the consummation of the transactions contemplated by this Agreement and the Related Documents in accordance with applicable Law in the absence of such Permits.
(d) In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions that the validity or legality provisions of Section 7.3(d) of the Contemplated Transactions or seeks damages in connection therewithFacilities Purchase and Sale Agreement become applicable, each of the parties hereto agrees shall use its Commercially Reasonable Efforts to cooperate develop and use reasonable efforts negotiate in good faith mutually acceptable modifications and amendments to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, this Agreement and to cooperate reasonably regarding the Related Documents and any other impediment appropriate arrangements (if any) to give effect to any modifications or amendments to the consummation Facilities Purchase and Sale Agreement entered into in accordance with Section 7.3(d) of the Contemplated TransactionsFacilities Purchase and Sale Agreement.
(de) Parent REITNothing in this Section 7.3 shall require Purchaser to dispose of any of its Assets or to limit its freedom of action with respect to any of its businesses, Parent OP and Parent Sub shall notor to consent to any disposition of any Seller’s Assets or limits on Purchaser’s freedom of action with respect to the businesses of any Seller, or commit or agree to any of the foregoing, and nothing in this Section 7.3 shall not permit authorize the Sellers to commit or agree to any of their respective controlled Affiliates tothe foregoing in order to obtain any consents, without approvals, permits or authorizations to remove any impediments to the prior written consent transactions contemplated hereby relating to the Hxxx-Xxxxx-Xxxxxx Act or other antitrust, competition or trade regulation Law (“Antitrust Laws”) or to obtain any Operating Licenses or other Permits or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding relating to the Antitrust Laws or any Laws relating to the Operating License or any other Permits.
(f) Purchaser, on the one hand, and Sellers, on the other hand, shall promptly notify, consult with and keep the other advised as to the status of the Representativematters referred to in this Section 7.3, enter into including with respect to any mergermaterial communication from the Federal Trade Commission, acquisition, joint venture the United States Department of Justice or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation any other Governmental Entity regarding any of the Financing or the Contemplated Transactionstransactions contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sunrise Senior Living Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto Company, Parent and Merger Sub, shall, and shall cause their respective Subsidiaries to, use its their respective 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 under this Agreement and applicable Laws to consummate and make effective, as reasonably promptly as practicable, and at or prior to the End Date, the Merger and the other transactions contemplated by this Agreement on the terms and subject to the conditions hereof (provided that in respect of Contracts in existence at the date of this Agreement between the Company or any of the Subsidiaries with any third Person, none of the parties hereto shall be required to make or agree to make any payment or accept any material conditions or obligations unless such payment, condition or obligation is contingent upon the consummation of the Merger).
(b) Each of the Company, Parent and Merger Sub shall, and shall cause their respective Subsidiaries, in connection with the actions referenced in Section 6.03(a), to (i) make as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as reasonably promptly as practicable all Permits, consents, approvals, clearances, waivers, orders, registrations, declarations, notices, filings or actions necessary or advisable to be obtained from any Governmental Entity or any other Person required to consummate the Merger and the other transactions contemplated by this Agreement (collectively, the “Required Approvals”); and (ii) as reasonably promptly as practicable take all steps as may be necessary to obtain all such Required Approvals. In connection therewith, each of the Company, Parent and Merger Sub shall, and shall cause their respective Subsidiaries to (w) cooperate in all material respects with each other other, including promptly providing one another with any information that may be reasonably required in connection with obtaining any consentorder to prepare and make such filings, waiver applications, notices, petitions, filings, ruling requests or other accommodation documents or obtain such Required Approvals; (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (iix) keep the other party and/or its counsel informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party to any Governmental Entity or any other Person; (y) consult with each other in advance of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion conference with any lenderGovernmental Entity or any other Person, servicer and to the extent permitted by such Governmental Entity or agent for other Person, give the purpose of discussing other party and/or its counsel the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP opportunity to attend and their advisors and representatives and all participate in such meetings and discussions will conferences; and (z) permit the other party and/or its counsel to review in advance any proposed submission, filing or communication (and documents submitted therewith) intended to be scheduled given by it to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPany Governmental Entity or other Person.
(c) Subject Neither Parent nor Merger Sub, nor the Company, shall, nor shall they permit their respective Subsidiaries to, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected materially to increase the risk of not obtaining, or the risk of materially impeding or delaying the obtaining of, any Required Approvals with respect to the terms and conditions herein provided, in Merger or the event any claim, action, suit, investigation or other proceeding transactions contemplated by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionsthis Agreement.
(d) Parent REITThe Company shall give prompt written notice to Parent, Parent OP and Parent Sub shall notgive prompt written notice to the Company, and shall not permit of (i) the occurrence, or failure to occur, of any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture event which occurrence or debt failure to occur has resulted in or equity financing, that would reasonably be expected to materially impair, delay result in the failure to satisfy or prevent consummation be able to satisfy any of the Financing conditions specified in Article VII and such written notice shall specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the Merger and the other transactions contemplated by this Agreement to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; and (iii) any material written notice from any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(d) shall not limit or otherwise affect the remedies available under this Agreement to Parent or the Contemplated TransactionsCompany.
(e) Each party will, either prior to or after the Effective Time, execute such further documents, instruments, deeds, bills of sale, assignments and assurances and take such further actions as may reasonably be requested by the other to consummate the Merger to vest the Surviving Corporation with full title to all assets, properties, privileges, rights, approvals, immunities and franchises of the Company or to effect the other purposes of this Agreement.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITParent, Parent OP, Parent Sub, Merger Sub and the Company and the Contributors shall use reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 7). Each of Parent, Merger Sub and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) secure any consents, waivers and approvals of any third party (other than a Governmental Entity) required to be obtained to consummate the transactions contemplated by this Agreement; provided, however, that, except as provided in the Side Letter, notwithstanding anything to the contrary in this Agreement, such action shall not include any requirement of any party hereto or any of such parties’ Affiliates to pay money to any such third party, commence or participate in any litigation, offer or grant any accommodation or undertake any obligation or liability (in each case financial or otherwise) to any such third party (subject to the parties obligations in Section 6.5(d)), and (ii) obtain consents of all Governmental Entities necessary to, in each case, consummate the transactions contemplated by this Agreement. Each party hereto shall make an appropriate filing, if required, pursuant to the HSR Act and with any applicable foreign Governmental Entity for which a competition filing is required, in each case, with respect to the transactions contemplated by this Agreement promptly after the date of this Agreement and shall supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the HSR Act or applicable law governing a foreign competition filing. Without limiting the foregoing, (i) Parent and its Affiliates shall not extend any waiting period or comparable period under the HSR Act or applicable law governing a foreign competition filing or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby, except with the prior written consent of the other Parties hereto, and (ii) Parent and Merger Sub agree to take all actions that are required by any Governmental Entity to expeditiously consummate the transactions contemplated by this Agreement, including (A) selling, licensing or otherwise disposing of, or holding separate and agreeing to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company after the Closing or any entity, facility or asset of Parent or its Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) of any Group Company after the Closing or Parent or any of its Affiliates, and (C) amending, assigning or terminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements, in each case of any Group Company after the Closing or Parent or any of its Affiliates. All HSR Act and applicable foreign competition filing fees shall be borne by Parent.
(b) Further, each of the Parties shall cooperate in all material respects with each other in connection with obtaining any consent, waiver filing or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions submission and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining any investigation or other inquiry and shall promptly (i) furnish to the Required Consents. Without limiting other such necessary information and reasonable assistance as the other Parties may request in connection with the foregoing, (Aii) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or inform the other of any communication from any Governmental Entity regarding any of the parties hereto that is transactions contemplated hereby, and (iii) provide counsel for the other Parties with copies of all filings made by such Party, and all correspondence between such Party (and its advisors) with any Governmental Entity and any other information supplied by such Party and such Party’s Affiliates to be provided to any lender, servicer a Governmental Entity or agent received from such a Governmental Entity in connection with obtaining a Required Consent the transactions contemplated hereby; provided, however, that materials may be redacted as necessary to comply with contractual arrangements and with applicable law. Each Party shall, subject to applicable law, permit counsel for the other Parties to review in advance, and consider in good faith the views of the other Parties in connection with, any such materials shall be revised proposed written communication to reflect any reasonable comments of Parent REIT and Parent OP Governmental Entity in connection with respect thereto and (B) the Group Companies and transactions contemplated hereby. The Parties agree not to participate, or to permit their representatives shall not engage or participate Affiliates to participate, in any substantive meeting or discussion discussion, either in person or proposed discussion by telephone, with any lenderGovernmental Entity in connection with the transactions contemplated hereby unless it consults with the other Parties in advance and gives the other Parties the opportunity to attend and participate. Notwithstanding the foregoing or any other provision of this Agreement, servicer Parent shall have ultimate decision-making authority with regard to any discussions, submissions, negotiations and other communications with all Governmental Entities in connection with any Action involving antitrust or agent for competition issues in connection with the purpose transactions contemplated by this Agreement. To the extent practicable Parent shall provide the Company with the opportunity to provide its point of discussing the Contemplated Transactions or the Required Consents without the participation view on such matters and shall consider that point of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPview in good faith in exercising its decision-making authority under this provision.
(c) Subject Further, and without limiting the generality of the rest of this Section 6.5, in the event that a Governmental Entity issues a request for additional information or documentary material pursuant to the terms HSR Act (the “Second Request”) in connection with the transactions contemplated by this Agreement, then each of Parent, Merger Sub and conditions herein providedthe Company shall make (or cause to be made), as soon as reasonably practicable and after consultation with the other, an appropriate response in compliance with the Second Request in order to obtain expiration or termination of the applicable waiting period before the Termination Date.
(d) In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties Parties hereto agrees agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable best efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto will use reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 ARTICLE II, including the completion of the Contribution and Exchange and the entry into Pre-Merger Restructuring); provided, however, that notwithstanding anything to the Tax Matters Agreementscontrary contained in this Agreement, together in the case of any consents or approvals of any Persons (other than a Governmental Body) that may be required in connection with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in otherwise related to this Agreement or the transactions contemplated hereby, no party hereto will be required to make any payments to any third party to secure any such consent or approval and will not be required to modify any such Contract to which the contrary (including consent or approval may relate. Without limiting the preceding sentence generality of this Section 6.4(a) and Section 9.1(f))the foregoing, in exercising such each of the parties hereto will use reasonable best efforts to make filings or notifications with, and obtain consents of all Governmental Bodies necessary to consummate the transactions contemplated by this Agreement. Each of the parties hereto will promptly inform the other parties hereto of any consent, waiver or other accommodation (including substantive communication between such party and any Governmental Body regarding any of the Required Consents) from any Person that is not a Governmental Entitytransactions contemplated by this Agreement. Without limiting the foregoing, none of the Group Companiesparties hereto, the Contributors, Parent REIT, Parent OP, Parent Sub, or nor any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur will enter into any liability, commence or threaten to commence agreement with any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required Governmental Body not to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates fromtransactions contemplated hereby, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection except with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into other parties hereto.
(b) The Company shall use reasonable best efforts to amend the award agreements between the Company and any merger, acquisition, joint venture Incentive Unit Holder who is or debt becomes employed by Buyer or equity financing, an Affiliate of Buyer prior to Closing (if any) to provide that would reasonably be expected underlying award shall accelerate and become fully exercisable at Closing in the event that such Incentive Unit Holder’s employment with the Company is terminated without cause prior to materially impair, delay or prevent consummation of Closing in the Financing or the Contemplated Transactions.form attached hereto as Exhibit F.
Appears in 1 contract
Samples: Securities Purchase Agreement and Agreement and Plan of Merger (Walgreens Boots Alliance, Inc.)
Efforts to Consummate. (a) Subject to the terms Each of Purchaser and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, Seller Parties and the Company and the Contributors shall use its commercially reasonable efforts to take, or cause to be taken, all lawful and reasonable actions within such party’s control and to do, or cause to be done, all lawful and reasonable things reasonably necessary, proper or advisable under applicable Law within such party’s control necessary to fulfill the conditions precedent to the obligations of the other party(ies) hereunder and to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining the foregoing. Each Party shall, at any time or from time to time after the Closing, execute and deliver to the others all such instruments and documents or further assurances as the others may reasonably request in order to grant to each Party all rights contemplated herein to be granted to such Party under this Agreement and the related agreements referenced herein; provided, however, that after the Closing, apart from such customary further assurances, no Party shall have any other obligations except as specifically set forth and described herein or in the related agreements. To the extent that the approval, consent, or waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals of a Third Party is required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentstransfer of any Company Significant Contract to the Company as contemplated by the Transactions and such approval, consent, or waiver has not been obtained prior to the Closing, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful. Without limiting If any such approval, consent, or waiver shall not have been obtained prior to the foregoingClosing, and Purchaser, in its sole discretion, shall have agreed to proceed with the Closing notwithstanding Seller Parties’ inability to provide such approval, consent, or waiver prior to Closing, Seller Parties shall for a period of up to twelve (12) months after the Closing, (Aa) Parent OP use their respective commercially reasonable best efforts to assist and Parent REIT shall be given no less than three cooperate with Purchaser and the Company in order to obtain all necessary approvals, consents, and waivers to the assignment and transfer thereof; and (3b) Business Days until any such approval, consent, or waiver is obtained, use their respective commercially reasonable best efforts to review provide to the Company substantially comparable benefits thereof and comment on all materials or documents relating to this Transaction or any enforce, at the request of and for the account of the parties hereto that is to be provided to Company, any lender, servicer or agent in connection with obtaining a Required Consent and rights of Seller Parties arising under any such materials shall be revised to reflect Company Significant Contract against any reasonable comments Third Party. To the extent that the Company is provided with benefits of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such actionCompany Significant Contract, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation Company shall perform the obligations of the Contemplated TransactionsSeller Parties thereunder.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each from the date hereof until the earlier of Parent REIT, Parent OP, Parent Sub, the Company termination of this Agreement in accordance with its terms and the Contributors Closing Date, Buyers shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing Closing conditions set forth in Article 8 IX), including (i) making all necessary registrations and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary filings (including filings under the preceding sentence of this Section 6.4(aHSR Act and all other applicable antitrust Laws) with any Governmental Body and Section 9.1(f))obtaining all necessary consents, in exercising such reasonable efforts to obtain any consentwaivers, waiver or other accommodation (including the Required Consents) approvals, orders and authorizations from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingBody.
(b) Subject Notwithstanding anything herein to the terms contrary, nothing in this Agreement shall require Buyers or any of their Affiliates to, and conditions of this Agreementthe Company and its Subsidiaries shall not without Buyers’ prior written consent, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining propose, negotiate, commit to or effect or accept any consentcondition, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consentby consent decree, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates fromhold separate order, or given by such party otherwise, which would, or any of its Affiliates would reasonably be expected to, any lender, servicer result in or agent in connection with obtaining the Required Consents. Without limiting the foregoing, require (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials the sale, divestiture, licensing or documents relating to this Transaction disposition of any assets or any of the parties hereto that is to be provided to any lenderbusinesses, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies termination of any portion of any venture or agreement, (C) in order to obtain the consent or approval of a Governmental Body, the creation of any relationship, contractual rights or obligation or (D) the effectuation of any other change or restructuring, in each case of Buyers and their representatives shall not engage Affiliates, or participate of the Company or its Subsidiaries, in each case other than as contemplated herein as of the date hereof, (ii) propose, negotiate, commit to, effect or accept any meeting condition, by way of consent decree or discussion otherwise, which would, or proposed discussion with any lenderwould reasonably be expected to, servicer or agent for result in a material impairment of the purpose aggregate economic benefits that as of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP date hereof Buyers and their advisors and representatives and all such meetings and discussions will be scheduled Affiliates, taken as a whole, reasonably expect to obtain from the transactions contemplated herein, (iii) propose, negotiate, commit to, effect or accept any condition, by way of consent decree or otherwise, of a type that is not customarily imposed by state Governmental Bodies in transactions that are similar to the transactions contemplated herein, or (iv) otherwise take or commit to take place at times and locations any actions that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein providedlimit, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impairlimit, delay the freedom of action of Buyers and their Affiliates or prevent consummation of the Financing Company and its Subsidiaries with respect to, or Buyers’ or their Affiliates’ ability to retain, any of the businesses, product lines or assets of Buyers and their Affiliates or the Contemplated TransactionsCompany and its Subsidiaries.
Appears in 1 contract
Samples: Interest Purchase Agreement (Nci Building Systems Inc)
Efforts to Consummate. (a) Subject Until the earlier of the Closing and the termination of this Agreement pursuant to the terms and conditions herein providedSection 8.01, each of Parent REITthe Parties shall, Parent OPand shall cause its controlled Affiliates to, Parent Sub, the Company and the Contributors shall use their respective reasonable best efforts to take, or cause to be taken, all actions and actions, to do, or cause to be done, and to assist and cooperate with the other party in doing, all things reasonably things, necessary, proper or advisable under applicable Law to carry out the provisions of this Agreement and to consummate and make effective as promptly as practicable reasonably practicable, on the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing terms and conditions set forth in this Agreement, the Transactions, including using reasonable best efforts in (i) the taking of all reasonable acts necessary to cause the applicable conditions precedent to the other Party’s obligations to consummate the Closing set forth in Article 8 VII to be satisfied, and (ii) obtaining all authorizations, consents, Orders and approvals from Governmental Authorities prior to the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoClosing, and the New Company Agreement)making of all registrations and filings, and the taking of all steps, in each case, as may be required of such Party to obtain all Regulatory Approvals with respect to the Transactions. Notwithstanding the foregoing or anything Nothing in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain 5.05 shall require any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Party or any of its respective Affiliates to (A) pay any consideration to any third-party, (B) initiate any Proceeding, (C) waive any right under this Agreement, (D) divest any Equity Interests or other ownership interests in any of their respective Affiliates, shall be obligated, except as or (E) otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree take or commit to take actions that would limit their freedom of action with respect to, or its ability to operate or retain, any of the foregoingtheir Affiliates or their Affiliates businesses.
(b) Subject Each of the Parties shall, in consultation and cooperation with the other Parties, promptly provide the documents and information required to prepare the terms and conditions filings for each Regulatory Approval, and, as promptly as reasonably practicable (but in no event later than twenty (20) Business Days from the date of this Agreement), make such filings; provided that with respect to any merger control filings such twenty (20) Business Day period shall apply to the commencement of the relevant pre-notification processes; provided, further, that each Party shall provide reasonable assistance and cooperate in good faith with the other Party to ensure that the same are submitted within such period of time. Prior to the Closing, the Parties shall each keep the other apprised of the status of matters relating to the completion of the Transactions and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, subject to applicable Law and the Confidentiality Agreement, each Party shall promptly consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or their counsel) copies of) all filings made by such Party or its Affiliates with any Governmental Authority or any other information supplied by such Party or its Affiliates to, or correspondence with, a Governmental Authority in connection with this Agreement and the Transactions. Subject to applicable Law and the Confidentiality Agreement, each Party shall promptly inform the other Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party in writing or orally of) any communication, inquiry or investigation from any Governmental Authority regarding the Transactions, and permit the other Party to review and discuss in advance, and consider in good faith the views of the parties hereto shall other Parties in connection with, any proposed written or oral communication with any such Governmental Authority. If any Party or any Representative or Affiliate of such Party receives a request for additional information or documentary material from any Governmental Authority with respect to the Transactions, then such Party will use its reasonable best efforts to make, or cause to be made, promptly and after consultation with the other Party, an appropriate response in compliance with such request. The Parties and their Affiliates shall not participate in any meeting with any Governmental Authority in connection with this Agreement and the Transactions (ior make oral submissions at meetings or in telephone or other conversations) cooperate unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Authority, gives the other Party the opportunity to attend and participate thereat. Subject to applicable Law and the Confidentiality Agreement, each Party and its Affiliates shall furnish the other Party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Authority with respect to this Agreement and the Transactions, and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of filings or submissions of information to any such Governmental Authority. The Parties may, as each deems advisable and necessary, reasonably designate any competitively sensitive material respects provided to the other under this Section 5.05(b) as “outside counsel only” or designate any competitively sensitive material and information filed with each other any Governmental Authority as “confidential information” to the extent possible in accordance with the practice of any Governmental Authority. Except with respect to materials and the information filed with any Governmental Authority, materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. All filing fees incurred in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT Regulatory Approvals under this Section 5.05 shall be given no less than three (3) Business Days to review and comment on all materials borne equally by the Parties, whether or documents relating to this Transaction or any of not the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials Closing shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPhave occurred.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Transaction Agreement (Anghami Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedof this Agreement, each of Parent REITthe Company, Parent OP, Parent and Merger Sub, the Company shall, and the Contributors shall cause its Subsidiaries to, use its reasonable best efforts to cooperate with each other party hereto to take, or cause to be taken, any and all actions actions, and to do, or cause to be done, all things reasonably necessary, appropriate or desirable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement on the terms and subject to the conditions hereof, including taking, or causing to be taken, all actions, and doing, or causing to be done, all things necessary, proper or advisable under applicable Law Laws to consummate and make effective as promptly as practicable satisfy the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 VII and consummate and make effective the Merger and the entry into the Tax Matters Agreementstransactions contemplated by this Agreement as promptly as practicable, together including to obtain, or cause to be obtained, any requisite approvals, consents, authorizations, orders, exemptions or waivers by any third Person, including preparing and filing with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoa Governmental Entity as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the New transactions contemplated by this Agreement (collectively, the “Governmental Approvals”), provided, however, that with respect to obtaining FCA Approval, such actions shall include making any capital contribution or taking any other actions, in each case so long as taking those actions would not (i) have a material adverse effect on the Company Agreement)and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole or (ii) involve a shutdown or divestiture of a material portion of Parent’s United Kingdom business. Notwithstanding the foregoing or anything in this Agreement herein to the contrary contrary, if any civil, criminal or administrative action, suit, litigation, arbitration, proceeding or investigation is instituted (including or threatened to be instituted) challenging the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none consummation of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement Merger or any other Transaction Documenttransaction contemplated by this Agreement as violative of any Regulatory Law, make it is expressly understood and agreed that Parent will defend through litigation on the merits any payment (claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ, the FCA or any other than to attorneys, accountants and other advisors), offer or grant applicable Governmental Entity under any accommodation (financial or otherwise) or agree or commit to any of the foregoingRegulatory Law.
(b) Subject Without limiting the foregoing, to the terms extent applicable and conditions of this Agreementas required, each of the Company, Parent and Merger Sub shall, and shall cause its Subsidiaries to, (i) file within fifteen (15) Business Days (unless otherwise mutually agreed by Parent and the Company) an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby, (ii) make any required initial notifications to the FCA pursuant to section 178(1) of the FSMA, to the CBI pursuant to section 39 of the Investment Intermediaries Act 1995 and the requirements of the CBI and to the CSSF pursuant to Article 18 of the 1993 Law, as soon as practicable and in any event within 20 Business Days (unless otherwise mutually agreed by Parent and the Company) after the date hereof, (iii) as reasonably promptly as practicable, make all other required filings to Governmental Entities required by this Agreement (clauses (i) through (iii) of this Section 6.03(b), collectively the “Merger Notification Filing”), (iv) (A) to furnish as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act (including responding to any “second request” for additional information or documentary material under the HSR Act as promptly as reasonably practicable), the FSMA, or any other Regulatory Law, (B) subject to Section 6.03(a), to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible and in any event no later than the End Date, and (C) subject to Section 6.03(a), take or cause to be taken all other actions necessary, proper or advisable to satisfy the FCA Approval, the CBI Approval and the CSSF Approval as soon as practicable. Subject to applicable Law, the parties hereto shall promptly supply one another with any information that may be required in order to make such filings or obtain such consents and approvals. Information shared among the Company, Parent and Merger Sub pursuant to this Section 6.03 shall be subject to such confidentiality restrictions as may be reasonably requested, including limiting information to outside counsel only or redacting commercially or competitively sensitive information.
(c) The Company, Parent and Merger Sub shall, and shall cause their respective Affiliates to: (i) promptly notify the others of, and if in writing, furnish the others with copies of (or, in the case of oral communications, advise the others of the contents of) any communication to such Person from a Governmental Entity (including any non-action, action, clearance, consent, approval or waiver, the commencement or proposed or threatened commencement of any investigation, litigation or administrative or judicial action or proceeding under any Regulatory Law), (ii) consult with each other in advance of any meeting or conference with the Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”), the FCA or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ, the FCA or such other Governmental Entity or other person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences and permit the others to review and discuss in advance (and to consider in good faith any comments made by the others in relation to) any proposed written communication to a Governmental Entity (except with respect to Taxes), (iii) keep the others reasonably informed of any developments, requests for meetings or discussions with any Governmental Entity in respect of any filings, investigation or inquiry concerning the Merger (including the nature and status of any objections raised or proposed or threatened to be raised under any Regulatory Law with respect to this Agreement, the Merger or the other transactions contemplated hereby) and (iv) permit the other party and/or its counsel to review in advance, with reasonable time and opportunity to comment, give reasonable consideration to the other party’s comments thereon, and consult with each other in advance of any proposed submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ, the FCA or any other Governmental Entity; provided, in each case, that with respect to any such appearances, presentations, memoranda, briefs, arguments, opinions or proposals or such filings, presentations or submissions, each of Parent and the Company need not supply the other (or its counsel) with copies (or in case of oral presentations, a summary) to the extent that any applicable Law requires such party or its subsidiaries to restrict or prohibit access to any such information, in which case, the information may be redacted (i) as necessary to comply with applicable Law and (ii) to remove references concerning the valuation of the businesses of Parent, the Company or their respective Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(c) as “Outside Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Whenever any event occurs that is required to be set forth in an amendment or supplement to any Merger Notification Filing made pursuant to Section 6.03(b), each party hereto will promptly inform the other parties of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or supplement.
(d) Each party hereto shall keep the other parties hereto reasonably informed, but only to the extent that doing so would not, in the reasonable judgment of such party, jeopardize any privilege of the party with respect thereto regarding any such litigation, action or proceeding, it being agreed that each party will also cooperate with the other parties to permit such inspection of or to disclose such information on a basis that does not compromise or waive such privilege with respect thereto. Parent shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder. It is agreed that Parent shall make all strategic decisions and lead all discussions, negotiations and other proceedings, and coordinate all activities with respect to any requests that may be made by, or any actions, consents, undertakings, approvals, or waivers that may be sought by or from, any Governmental Entity, including determining the strategy for contesting, litigating or otherwise responding to objections to, or proceedings challenging, the consummation of the Merger and the other transactions contemplated by this Agreement, in each case subject to good faith consultations with the Company reasonably in advance and in consideration of the Company’s views. Neither Parent nor Merger Sub shall, nor shall they permit their respective Subsidiaries to, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), with the actual intent of increasing the risk of not obtaining, or the actual intent of increasing the risk of materially impeding or delaying the obtaining of, any Governmental Approvals with respect to the Merger or the other transactions contemplated by this Agreement.
(e) In furtherance and not in limitation of Section 6.03(a) or Section 6.03(b), pursuant to NASD Rule 1017, the Company shall cause (i) each Broker-Dealer to file with FINRA, as soon as practicable after the date hereof, a substantially complete application seeking FINRA’s approval of the indirect change of ownership of such Broker-Dealer to be effected as a result of the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate obtain such approval, provide Parent and its counsel with an opportunity to review any related filings prior to their submission and keep Parent and its counsel reasonably informed of any developments in all material respects with each other in connection with obtaining any consentrespect of such filings, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on each Broker-Dealer that is a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any member of the parties hereto that is NSCC to file with the NSCC, at least ninety (90) days prior to Closing, a written notification regarding the indirect change of ownership of such Broker-Dealer to be provided to effected as a result of the transactions contemplated hereby. Parent shall provide reasonably promptly any lender, servicer or agent in connection with obtaining a Required Consent and any information reasonably necessary for completion of such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPapplications.
(cf) Subject To the extent permitted by applicable Law, the Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the terms and conditions herein providedCompany, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay result in the failure to satisfy or prevent consummation be able to satisfy any of the Financing conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; and (iii) any material written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(f) shall not limit or otherwise affect the remedies available under this Agreement to Parent or the Contemplated TransactionsCompany.
Appears in 1 contract
Samples: Merger Agreement (DST Systems Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITParent, Parent OP, Parent Sub, Merger Sub and the Company and the Contributors shall use commercially reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 ARTICLE VII). Each of Parent, Merger Sub and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such shall use commercially reasonable efforts to obtain any consent, waiver or other accommodation (including consents of all Governmental Entities necessary to consummate the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to transactions contemplated by this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingAgreement.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees agree to cooperate and use commercially reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby; provided, however, that each party hereto has no duty to agree to any structure or conduct remedy or to litigate with respect to the transactions contemplated by this Agreement.
(dc) Parent REITPrior to the Closing, Parent OP each party hereto shall promptly notify the other parties hereto of any communication it or its controlled Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and Parent Sub permit the other parties hereto to review in advance any proposed communication by it to any Governmental Entity. Prior to the Closing, no party hereto shall notagree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other parties hereto in advance and, to the extent permitted by such Governmental Entity, gives the other parties hereto the opportunity to attend and participate at such meeting. Prior to the Closing, each party hereto will provide the other parties hereto with copies of all correspondence or communications between it or any of its representatives, on the one hand, and shall not permit any Governmental Entity or members of their respective controlled Affiliates toits staff, without on the prior written consent of other hand, with respect to this Agreement and the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Aramark Corp)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use its reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, but not waiverincluding the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the conditions precedent to consummating the transactions contemplated by this Agreement. Each party agrees to cooperate fully with the other party in assisting it to comply with this Section 5.8. Without limiting the generality of the closing conditions set forth in Article 8 foregoing, (i) the Shareholders agree to provide, and to cause Holding and the entry into AAC Companies and their Key Personnel to provide, at the Tax Matters Agreementsexpense of the Company, together all necessary cooperation with the Member Guarantees arrangement of any financing to be consummated in respect of the transactions contemplated by this Agreement, including participation in meetings and Capital Contribution Agreements that are exhibits theretodue diligence sessions. No consideration, and whether such consideration shall consist of the New Company Agreement)payment of money or shall take any other form, for any consent, waiver or agreement necessary to the consummation of the transactions contemplated hereby shall be given or promised by Holding, the AAC Companies or the Shareholders without the prior written approval of Investors. Notwithstanding the foregoing foregoing, nothing contained herein shall require (i) any party hereto or anything any of its respective Affiliates to sell, transfer, divest or otherwise dispose of any of its respective business, assets or properties in connection with this Agreement or any of the transactions contemplated hereby, (ii) the Company to enter into any agreement or other arrangement for the contrary financing of the transactions contemplated hereby on terms that are not satisfactory to Investors, in its sole discretion or (iii) any party hereto to initiate any litigation, make any substantial payment or incur any material economic burden (including the preceding sentence as a result of this Section 6.4(a) and Section 9.1(f)any divestiture), in exercising such reasonable efforts except for payments a party presently is contractually obligated to make, to obtain any consent, waiver waiver, authorization, order or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingapproval.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Asset Contribution and Securities Purchase Agreement (Asset Acceptance Capital Corp)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and delivery such Ancillary Document when required pursuant to this Agreement and (ii) using reasonable best efforts to obtain the entry into PIPE Financing on the Tax Matters terms and subject to the conditions set forth in the PIPE Subscription Agreements). Without limiting the generality of the foregoing, together each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents. With respect to the Company, during the period from and after the date hereof until the Closing, the Company and Merger Sub shall take all actions reasonably necessary to cause the Company to qualify as “foreign private issuer” as such term is defined under Exchange Act Rule 3b-4 and to maintain such status through the Closing. The Company shall bear the costs incurred in connection with obtaining such Consents; provided, however, that, subject to Section 8.6, each Party shall bear its out-of-pocket costs and expenses in connection with the Member Guarantees preparation of any such Consents. BOA shall promptly inform the Company of any communication between BOA, on the one hand, and Capital Contribution Agreements that are exhibits theretoany Governmental Entity, on the other hand, and the New Company Agreement). Notwithstanding shall promptly inform BOA of any communication between the foregoing Company or anything in this Agreement to Merger Sub, on the contrary (including the preceding sentence of this Section 6.4(a) one hand, and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none on the other hand, in either case, regarding any of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to transactions contemplated by this Agreement or any Ancillary Document. Without limiting the generality of the foregoing, no Party shall enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of BOA and the Company. Nothing in this Section 5.2 obligates any Party or any of its Affiliates to agree to (a) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company or any entity, facility or asset of such Party or any of its Affiliates, (b) terminate, amend or assign existing relationships and contractual rights or obligations, (c) amend, assign or terminate existing licenses or other Transaction Documentagreements, make any payment or (d) enter into new licenses or other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agreements. No Party shall agree or commit to any of the foregoingforegoing measures with respect to any other Party or any of its Affiliates, except with BOA’s and the Company’s prior written consent.
(b) Subject to From and after the terms and conditions date of this Agreement, each Agreement until the earlier of the parties hereto Closing or termination of this Agreement in accordance with its terms, BOA, on the one hand, and the Company and Merger Sub, on the other hand, shall use its give counsel for the Company (in the case of BOA) or BOA (in the case of the Company or Merger Sub), a reasonable best efforts opportunity to (i) cooperate review in all material respects with each advance, and consider in good faith the views of the other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates towith, any lenderproposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or the Ancillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, servicer either in person or agent by telephone with any Governmental Entity in connection with obtaining the Required Consents. Without limiting transactions contemplated by this Agreement unless it consults with, in the foregoingcase of BOA, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any the Company, or, in the case of the parties hereto that is Company or Merger Sub, BOA in advance and, to be provided the extent not prohibited by such Governmental Entity, gives, in the case of BOA, the Company, or, in the case of the Company or Merger Sub, BOA, the opportunity to any lender, servicer or agent in connection with obtaining a Required Consent attend and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any such meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPdiscussion.
(c) Subject Notwithstanding anything to the terms and conditions herein providedcontrary in the Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding that this Section 5.2 conflicts with any other impediment covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the consummation extent of the Contemplated Transactionssuch conflict.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Business Combination Agreement (BOA Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedof this Agreement, each of Parent REITthe Company, Parent OP, Parent and Merger Sub, the Company shall, and the Contributors shall cause its Subsidiaries to, use its reasonable best efforts to cooperate with each other party hereto to take, or cause to be taken, any and all actions actions, and to do, or cause to be done, all things reasonably necessary, appropriate or desirable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement on the terms and subject to the conditions hereof, including taking, or causing to be taken, all actions, and doing, or causing to be done, all things necessary, proper or advisable under applicable Law Laws to consummate and make effective as promptly as practicable satisfy the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 VII and consummate and make effective the Merger and the entry into the Tax Matters Agreementstransactions contemplated by this Agreement as promptly as practicable, together including to obtain, or cause to be obtained, any requisite approvals, consents, authorizations, orders, exemptions or waivers by any third Person, including preparing and filing with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoa Governmental Entity as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the New transactions contemplated by this Agreement (collectively, the “Governmental Approvals”), provided, however, that with respect to obtaining FCA Approval, such actions shall include making any capital contribution or taking any other actions, in each case so long as taking those actions would not (i) have a material adverse effect on the Company Agreement)and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole or (ii) involve a shutdown or divestiture of a material portion of Parent’s United Kingdom business. Notwithstanding the foregoing or anything in this Agreement herein to the contrary contrary, if any civil, criminal or administrative action, suit, litigation, arbitration, proceeding or investigation is instituted (including or threatened to be instituted) challenging the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none consummation of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement Merger or any other Transaction Documenttransaction contemplated by this Agreement as violative of any Regulatory Law, make it is expressly understood and agreed that Parent will defend through litigation on the merits any payment (claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ, the FCA or any other than to attorneys, accountants and other advisors), offer or grant applicable Governmental Entity under any accommodation (financial or otherwise) or agree or commit to any of the foregoingRegulatory Law.
(b) Subject Without limiting the foregoing, to the terms extent applicable and conditions of this Agreementas required, each of the Company, Parent and Merger Sub shall, and shall cause its Subsidiaries to, (i) file within fifteen (15) Business Days (unless otherwise mutually agreed by Parent and the Company) an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby, (ii) make any required initial notifications to the FCA pursuant to section 178(1) of the FSMA, to the CBI pursuant to section 39 of the Investment Intermediaries Act 1995 and the requirements of the CBI and to the CSSF pursuant to Article 18 of the 1993 Law, as soon as practicable and in any event within 20 Business Days (unless otherwise mutually agreed by Parent and the Company) after the date hereof, (iii) as reasonably promptly as practicable, make all other required filings to Governmental Entities required by this Agreement (clauses (i) through (iii) of this Section 6.03(b), collectively the “Merger Notification Filing”), (iv) (A) to furnish as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act (including responding to any “second request” for additional information or documentary material under the HSR Act as promptly as reasonably practicable), the FSMA, or any other Regulatory Law, (B) subject to Section 6.03(a), to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible and in any event no later than the End Date, and (C) subject to Section 6.03(a), take or cause to be taken all other actions necessary, proper or advisable to satisfy the FCA Approval, the CBI Approval and the CSSF Approval as soon as practicable. Subject to applicable Law, the parties hereto shall promptly supply one another with any information that may be required in order to make such filings or obtain such consents and approvals. Information shared among the Company, Parent and Merger Sub pursuant to this Section 6.03 shall be subject to such confidentiality restrictions as may be reasonably requested, including limiting information to outside counsel only or redacting commercially or competitively sensitive information.
(c) The Company, Parent and Merger Sub shall, and shall cause their respective Affiliates to: (i) promptly notify the others of, and if in writing, furnish the others with copies of (or, in the case of oral communications, advise the others of the contents of) any communication to such Person from a Governmental Entity (including any non-action, action, clearance, consent, approval or waiver, the commencement or proposed or threatened commencement of any investigation, litigation or administrative or judicial action or proceeding under any Rxxxxxxxxx Xxx), (xx) consult with each other in advance of any meeting or conference with the Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”), the FCA or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ, the FCA or such other Governmental Entity or other person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences and permit the others to review and discuss in advance (and to consider in good faith any comments made by the others in relation to) any proposed written communication to a Governmental Entity (except with respect to Taxes), (iii) keep the others reasonably informed of any developments, requests for meetings or discussions with any Governmental Entity in respect of any filings, investigation or inquiry concerning the Merger (including the nature and status of any objections raised or proposed or threatened to be raised under any Regulatory Law with respect to this Agreement, the Merger or the other transactions contemplated hereby) and (iv) permit the other party and/or its counsel to review in advance, with reasonable time and opportunity to comment, give reasonable consideration to the other party’s comments thereon, and consult with each other in advance of any proposed submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ, the FCA or any other Governmental Entity; provided, in each case, that with respect to any such appearances, presentations, memoranda, briefs, arguments, opinions or proposals or such filings, presentations or submissions, each of Parent and the Company need not supply the other (or its counsel) with copies (or in case of oral presentations, a summary) to the extent that any applicable Law requires such party or its subsidiaries to restrict or prohibit access to any such information, in which case, the information may be redacted (i) as necessary to comply with applicable Law and (ii) to remove references concerning the valuation of the businesses of Parent, the Company or their respective Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(c) as “Outside Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Whenever any event occurs that is required to be set forth in an amendment or supplement to any Merger Notification Filing made pursuant to Section 6.03(b), each party hereto will promptly inform the other parties of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or supplement.
(d) Each party hereto shall keep the other parties hereto reasonably informed, but only to the extent that doing so would not, in the reasonable judgment of such party, jeopardize any privilege of the party with respect thereto regarding any such litigation, action or proceeding, it being agreed that each party will also cooperate with the other parties to permit such inspection of or to disclose such information on a basis that does not compromise or waive such privilege with respect thereto. Parent shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder. It is agreed that Parent shall make all strategic decisions and lead all discussions, negotiations and other proceedings, and coordinate all activities with respect to any requests that may be made by, or any actions, consents, undertakings, approvals, or waivers that may be sought by or from, any Governmental Entity, including determining the strategy for contesting, litigating or otherwise responding to objections to, or proceedings challenging, the consummation of the Merger and the other transactions contemplated by this Agreement, in each case subject to good faith consultations with the Company reasonably in advance and in consideration of the Company’s views. Neither Parent nor Merger Sub shall, nor shall they permit their respective Subsidiaries to, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), with the actual intent of increasing the risk of not obtaining, or the actual intent of increasing the risk of materially impeding or delaying the obtaining of, any Governmental Approvals with respect to the Merger or the other transactions contemplated by this Agreement.
(e) In furtherance and not in limitation of Section 6.03(a) or Section 6.03(b), pursuant to NASD Rule 1017, the Company shall cause (i) each Broker-Dealer to file with FINRA, as soon as practicable after the date hereof, a substantially complete application seeking FINRA’s approval of the indirect change of ownership of such Broker-Dealer to be effected as a result of the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate obtain such approval, provide Parent and its counsel with an opportunity to review any related filings prior to their submission and keep Parent and its counsel reasonably informed of any developments in all material respects with each other in connection with obtaining any consentrespect of such filings, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on each Broker-Dealer that is a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any member of the parties hereto that is NSCC to file with the NSCC, at least ninety (90) days prior to Closing, a written notification regarding the indirect change of ownership of such Broker-Dealer to be provided to effected as a result of the transactions contemplated hereby. Parent shall provide reasonably promptly any lender, servicer or agent in connection with obtaining a Required Consent and any information reasonably necessary for completion of such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPapplications.
(cf) Subject To the extent permitted by applicable Law, the Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the terms and conditions herein providedCompany, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay result in the failure to satisfy or prevent consummation be able to satisfy any of the Financing conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; and (iii) any material written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(f) shall not limit or otherwise affect the remedies available under this Agreement to Parent or the Contemplated TransactionsCompany.
Appears in 1 contract
Efforts to Consummate. (a) Subject to Upon the terms and subject to the conditions herein provided, each of Parent REIT, Parent OP, Parent Suband other agreements set forth in this Agreement, the Company Parties shall (i) cooperate with each other and the Contributors shall use their respective reasonable best efforts to take, or cause to be taken, all such further actions, in each case, as may be reasonably required to carry out the provisions of this Agreement and give effect to the transactions contemplated by this Agreement in the most expeditious manner possible, (ii) refrain from taking any actions and to dothat would reasonably be expected, or are intended to, materially impair, delay or impede the Initial Closing or any Subsequent Closing, and (iii) not in limitation of any other provision of this Agreement, use their respective reasonable best efforts to cause all the conditions to the obligations of the other Parties to consummate the transactions contemplated by this Agreement to be donemet as soon as reasonably practicable; provided, however, that neither Sellers nor any Group Company shall commit to or be obligated for the payment of any material fee, penalty or other consideration or make or be obligated to make any other material concession, waiver or amendment under any Material Contract or Customer Agreement in connection with or as a condition to obtaining any Governmental Approval or Third Party Approval without the prior written consent of Buyer.
(b) The Parties (i) subject to Section 6.6(c), shall as soon as reasonably practicable following the date hereof make all things filings, applications and notifications with, and use their reasonable best efforts to promptly obtain all Governmental Approvals that may be or become necessary for their respective execution and delivery of, and the performance of their respective obligations pursuant to, and the consummation of the transactions contemplated by, this Agreement, including by (A) seeking to prevent the initiation of and defending any Action challenging this Agreement or the consummation of the transactions contemplated hereby, (B) the prompt provision to a Governmental Entity of non-privileged information and documents reasonably requested by such Governmental Entity and that are reasonably necessary, proper or advisable under applicable Law to permit consummation of the transactions contemplated by this Agreement and (C) seeking to avoid the entry of, or using reasonable best efforts to cause to be lifted or rescinded any Governmental Order entered by any Governmental Entity adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement, and (ii) shall take all other actions as may be reasonably required or requested by any applicable Governmental Entity or as may otherwise be necessary in order to obtain such Governmental Approvals. In furtherance and not in limitation of the foregoing, (A) Buyer agrees to (and to cause its Affiliates to) (I) consult with the JFSA to obtain the JFSA’s approval with respect to Paragraph 7 of Article 16-2 and Item 2, Paragraph 1 of Article 53 of the Japanese Banking Act as soon as practicable following the date hereof and (II) submit appropriate application or filing documentation required under Article 16-2 and/or Article 53 of the Japanese Banking Act no later than ten (10) Business Days prior to the anticipated Initial Closing Date or such longer period as the Parties, acting in good faith, may determine is necessary in the circumstances and (B) Buyer agrees to (and to cause its Affiliates to) and Sellers agree to (and to cause their Covered Affiliates to), no later than ten (10) Business Days following the date hereof, (I) make effective the appropriate filings required pursuant to the HSR Act and any other antitrust Laws, if applicable, and (II) as promptly as is practicable following the Contemplated Transactions (includingdate hereof, without limitation, make all other filings reasonably required pursuant to other applicable Law with respect to the satisfaction, but not waiver, transactions contemplated by this Agreement. Each of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together Parties will cooperate with the Member Guarantees reasonable requests of the other in promptly seeking to obtain all such authorizations, consents, orders and Capital Contribution Agreements approvals. No Party shall take any action that are exhibits theretowould reasonably be expected, or is intended to, materially delay, impair or impede the receipt of any required such Governmental Approvals. Buyer shall bear the filing fees under the HSR Act and the New Company Agreement). any other fees for any Governmental Approvals.
(c) Notwithstanding the foregoing or anything in this Agreement to the contrary (contrary, nothing shall require, or be deemed to require, Buyer to take or agree to take any action, including the preceding sentence of this Section 6.4(a) and Section 9.1(f))entering into any consent decree, in exercising such reasonable efforts to obtain any consent, waiver hold separate order or other accommodation arrangement, that would (including i) limit Buyer’s ability to acquire or hold, or exercise full rights of ownership with respect to, the Required ConsentsMembership Interests, or (ii) from any Person that is not otherwise, individually or in the aggregate with all other such actions or limitations, materially adversely impact the reasonably anticipated aggregate economic or business benefits, taken as a Governmental Entitywhole, none to Buyer of the Group Companiestransactions contemplated by this Agreement, taking into account the Contributors, Parent REIT, Parent OP, Parent Sub, economic value derived from taking or agreeing to take any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingsuch action.
(bd) Subject To the extent reasonably practicable, and subject to applicable Laws, the instructions of any Governmental Entity and reasonable guidance from each Party’s antitrust counsel relating to the terms exchange of information, the Parties will (i) consult with the other with regard to the exchange of information relating to Buyer and conditions of its Affiliates and Representatives or Sellers, the Group Companies or their respective Covered Affiliates and Representatives, as the case may be, which appear in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transaction contemplated by this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep notify the other party informed in Parties of the receipt of comments or requests from any Governmental Entity relating to any Governmental Approval, and shall supply the other Parties with copies of all material respects and on a reasonably timely basis of any material communication received by such party correspondence between the notifying Party or any of its Representatives, Affiliates from(in the case of Buyer) or Covered Affiliates (in the case of Sellers and the Group Companies) and the Governmental Entity with respect to such Governmental Approval, and (iii) notify the other Parties of any meeting or given conference call with any Governmental Entity relating to the matters that are subject of this Agreement and provide the other Parties with the opportunity to participate to the extent permitted by such party Governmental Entity. Buyer and Sellers shall use commercially reasonable efforts to schedule and attend any hearings or meetings with any of its Affiliates to, any lender, servicer or agent in connection with obtaining Governmental Entity to obtain the Required ConsentsGovernmental Approvals as promptly as reasonably possible. Without limiting the foregoing, (ABuyer further agrees that it shall promptly report any progress or issues arising from its consultation with the JFSA pursuant to Section 6.6(b) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPSellers.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Icahn Enterprises Holdings L.P.)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedherein, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of including (i) satisfying the closing conditions set forth in Article 8 IX and (ii) consummating any PIPE Financing on the terms and subject to the conditions contemplated in connection therewith). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the entry into transactions contemplated by the Tax Matters Transaction Agreements.
(b) Notwithstanding anything to the contrary in the Agreement, together (i) in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall SPAC or any Group Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which any Group Company is a party or otherwise in connection with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoconsummation of the Transactions.
(c) During the Interim Period, SPAC, on the one hand, and the New Company Agreement). Notwithstanding Company, on the foregoing other hand, shall each notify the other in writing promptly after learning of any shareholder demands or anything in this Agreement to the contrary other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the preceding sentence of this Section 6.4(a“Transaction Litigation”) and Section 9.1(f))commenced against, in exercising such reasonable efforts to obtain the case of SPAC, SPAC or any consentof its Representatives (in their capacity as a representative of SPAC) or, waiver or other accommodation (including in the Required Consents) from any Person that is not a Governmental Entity, none case of the Group CompaniesCompany, the Contributors, Parent REIT, Parent OP, Parent Sub, Company or any Subsidiary of the Company or any of their respective Affiliates, shall be obligated, except Representatives (in their capacity as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement a representative of the Company or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any Subsidiary of the foregoing.
(b) Subject to Company). SPAC and the terms and conditions of this Agreement, Company shall each of the parties hereto shall use its reasonable best efforts to (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate in all material respects with each the other in connection with obtaining the defense, settlement and compromise of any consentsuch Transaction Litigation, waiver or other accommodation (including iii) consider in good faith the Required Consentsother’s advice with respect to any such Transaction Litigation and (iv) from reasonably cooperate with each other. Notwithstanding the foregoing, (i) SPAC and the Company shall jointly control the negotiation, defense and settlement of any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions such Transaction Litigation and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party no event shall SPAC (or any of its Affiliates fromRepresentatives), on the one hand, or given by such party the Company (or any of its Affiliates toRepresentatives), on the other hand, settle or compromise any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, Litigation brought without the prior written consent of the Representativeother Party (not to be unreasonably withheld, enter into any merger, acquisition, joint venture conditioned or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsdelayed).
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, using its reasonable best efforts to provide, obtain and maintain all third party or other notices, permits, consents, approvals, authorizations, qualifications and orders of, and the satisfactionexpiration or termination of waiting periods by, but not waiver, of Governmental Entities and parties to Contracts with the closing conditions Company and the other Group Companies as set forth in Article 8 and the entry into the Tax Matters Agreements, together Section 5.5 that are reasonably required in connection with the Member Guarantees consummation of the Transactions and Capital Contribution Agreements that are exhibits thereto, and to fulfill the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement conditions to the contrary (including Transactions. If, at any time after the preceding sentence of this Section 6.4(a) and Section 9.1(f))Closing, in exercising such reasonable efforts any further action is necessary or desirable to obtain any consent, waiver or other accommodation (including carry out the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action. Without limiting the generality of the foregoing, each of the parties hereto Parties shall use its reasonable best efforts to (i) cooperate in all material respects obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the Transactions, and (ii) oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Transactions, and defend, or cause to be defended, any Proceedings challenging the Arrangement or this Agreement or the Transactions (provided that no Party shall consent to the entry of any judgment or settlement with respect to such Proceeding without the prior written approval of the other Parties, not to be unreasonably withheld, conditioned or delayed). The Company shall each other bear 100% of the costs incurred in connection with obtaining such Consents and any consent, waiver filing fees or other accommodation costs payable to a Governmental Entity in connection the preparation, filing or mailing of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the preparation, filing or mailing of the Registration Statement / Proxy Statement (including excluding legal fees), including, subject to Section 11.6, its own out-of-pocket costs and expenses in connection with the Required preparation of any such Consents. Each Party shall promptly inform the other Parties in writing of (i) with respect to the Company, any Company Material Adverse Effect that occurs after the date hereof, or any change, event, occurrence, effect, state of facts or circumstance that, individually or in the aggregate with such other changes, events, occurrence, effects, state of facts, circumstances, would reasonably be expected to lead to a Company Material Adverse Effect; (ii) any material communications it has with any Governmental Entity regarding any of the Transactions; (iii) any notice or other communication from any Person as alleging that a consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is or may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoingTransactions; and (iv) any Proceeding commenced or threatened against, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to or involving or otherwise affecting this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions Agreement or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPTransactions.
(b) [Intentionally omitted].
(c) Subject From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, SPAC and the Acquisition Entities, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of SPAC or any Acquisition Entity) or counsel for SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity specifically relating to the terms and conditions herein providedTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone or otherwise with any Governmental Entity specifically relating to Transactions unless it consults with, in the event case of SPAC or any claimAcquisition Entity, actionthe Company, suitor, investigation or other proceeding in the case of the Company, SPAC in advance and, to the extent not prohibited by any such Governmental Entity or other Person is commenced which questions by Law, gives, in the validity case of SPAC or legality any Acquisition Entity, the Company, or, in the case of the Contemplated Transactions Company, SPAC, the opportunity to attend and participate in such meeting or seeks damages in connection therewith, each of discussion. PubCo will cause the parties hereto agrees proxy statement to cooperate and use reasonable efforts be mailed to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order SPAC Stockholders as promptly as practicable after the Registration Statement / Proxy Statement is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to declared effective under the consummation of the Contemplated TransactionsSecurities Act.
(d) Parent REITTo the extent that any information or documentation to be provided by one Party to another Party pursuant to this Section 8.2 is, Parent OP and Parent Sub shall notin the reasonable view of the providing Party, competitively sensitive, such information or documentation may be provided only to external counsel of the other Party on an “external counsel only” basis, and such receiving Party shall not permit request or otherwise received such information from its external counsel.
(e) Notwithstanding anything to the contrary in the Agreement, in the event that this Section 8.2 conflicts with any other covenant or agreement in this Article VIII that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.
(f) Without limiting the Parties’ rights and obligations under Section 3.1(a), Section 3.1(e) and Section 3.1(f), from and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, SPAC and the Acquisition Entities, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder Proceedings (including derivative claims and Arrangement Dissent Rights) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of SPAC, any Acquisition Entity or any of their respective controlled Affiliates Representatives (in their capacity as a representative of SPAC or any Acquisition Entity) or, in the case of the Company, any Group Company or any of their respective Representatives (in their capacity as a representative of a Group Company). Subject and in addition to Section 3.1(c)(ii) with respect to Arrangement Dissent Rights, SPAC, the Acquisition Entities and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, (iv) reasonably cooperate with each other, and (v) refrain from settling or compromising any Transaction Litigation without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing SPAC or the Contemplated TransactionsAcquisition Entities, on the one hand, or the Company, on the other hand, as applicable (not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Samples: Business Combination Agreement (Arogo Capital Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements7); provided, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretohowever, and the New Company Agreement). Notwithstanding the foregoing or that, notwithstanding anything in this Agreement to the contrary contained in this Agreement, (i) in the case of any Consents from any third party that may be required in connection with the foregoing, Sellers, the Holding Companies and their respective Affiliates (including the preceding sentence of this Section 6.4(aGroup Companies) and Section 9.1(f)), in exercising such reasonable efforts shall not be required to seek or obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is third party any such Consent, unless otherwise agreed in writing by the Seller Representative, or make, or cause to be made, any payments to any third party to secure any such Consent and shall not a Governmental Entitybe required to modify any such contract or agreement to which the Consent may relate in any material respect, and (ii) for the avoidance of doubt, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Sellers or any of their respective AffiliatesAffiliates (including, prior to the Closing, the Holding Companies and the Group Companies) shall be obligated, except as otherwise provided have any liabilities arising out of or relating to any contracts or arrangements set forth in Annex E Section 3.5 of the Seller Schedules or Section 6.4(c) 4.3 of the Seller Schedules which it does not seek or Section 6.5, obtain in connection with the transactions prior to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any the Closing. Without limiting the generality of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto Parties shall use its reasonable best efforts to (i) cooperate in obtain consents of all material respects with each other Governmental Entities necessary to consummate the transactions contemplated by this Agreement. All costs incurred in connection with obtaining any consentsuch consents, waiver or other accommodation (including including, if applicable, the Required Consents) from any Person as may HSR Act filing fee, shall be necessary or desirable to obtain any consentborne by HYAC; provided, waivers or approvals required to consummate the Contemplated Transactions however, that each Party shall bear its out-of-pocket costs and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any expenses of its Affiliates from, own legal counsel and other advisors or given by such party or any of its Affiliates to, any lender, servicer or agent consultants in connection with obtaining the Required Consentspreparation of any such filings or consents. Each Party shall make, or cause to be made, to the extent necessary, an appropriate filing pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event, the filing under the HSR Act within ten Business Days) after the date of this Agreement (unless filed prior to the date of this Agreement) and shall respond as promptly as practicable to any requests by the appropriate Governmental Entities for additional information and documentary material pursuant to the HSR Act, if applicable. Each Party shall promptly inform the other Parties of any communication between such Party and any Governmental Entity regarding any of the transactions contemplated by this Agreement. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lenderif applicable, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies each Party and their representatives respective Affiliates shall not engage extend any waiting period, review period or participate in comparable period under the HSR Act or enter into any meeting or discussion or proposed discussion agreement with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions not to consummate the validity or legality of the Contemplated Transactions or seeks damages in connection therewithtransactions contemplated hereby, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of the other Parties. Nothing in this Section 6.2 obligates any Party or any of its Affiliates to agree to (A) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company or any entity, facility or asset of such Party or any of its Affiliates, (B) terminate, amend or assign existing relationships and contractual rights or obligations, (C) amend, assign or terminate existing licenses or other agreements, or (D) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures with respect to any other Party or any of its Affiliates (including, in the case of the Sellers, the Group Companies), except with such other Party’s prior written consent.
(b) From and after the date of this Agreement until the earlier of the Closing and termination of this Agreement in accordance with its terms, each of HYAC and Dory US Holding Company, on the one hand, and Sellers, Dory Parent, Dory US Merger Sub and Dory Table of Contents Foreign Holding Company, on the other hand, shall give counsel for the other Party a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of HYAC or Dory US Holding Company, the Seller Representative, or, in the case of any Seller, Dory Parent, Dory US Merger Sub or Dory Foreign Holding Company, HYAC in advance and, to the extent not prohibited by such Governmental Entity, gives, in the case of HYAC or Dory US Holding Company, the Seller Representative, or, in the case of any Seller, Dory Parent, Dory US Merger Sub or Dory Foreign Holding Company, HYAC, the opportunity to attend and participate in such meeting or discussion.
(c) Except as required by this Agreement, HYAC shall not, and shall cause its Affiliates not to, engage in any action or enter into any mergertransaction or permit any action to be taken or transaction to be entered into, in each case, that would prevent or materially delay obtaining the consents of all Governmental Entities necessary to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, HYAC shall not, and shall cause its Affiliates and their respective ultimate parent entities and Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, joint venture merger or debt or equity financing, that consolidation would reasonably be expected to: (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any consents, authorizations, orders, declarations or approvals of any Governmental Entity necessary to materially impairconsummate the transactions contemplated by this Agreement (including, if applicable, pursuant to the HSR Act) or the expiration or termination of any applicable waiting period; (ii) increase the risk of any Governmental Entity seeking or entering an order prohibiting the consummation of the transactions contemplated by this Agreement; (iii) increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) delay or prevent the consummation of the Financing or the Contemplated Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Haymaker Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company Seller and the Contributors Buyer shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Legal Requirements and regulations to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated hereby (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 ARTICLE 7 and obtaining consents of all Governmental Entities necessary to consummate the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreementtransactions contemplated hereby). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Proceeding by any a Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use all commercially reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use all commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(c) Seller and Buyer shall permit counsel for the other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed written material communication to any Governmental Entity relating to the transactions contemplated by this Agreement, subject to appropriate confidentiality protections. Each of Seller and Buyer agrees not to participate in any material substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity and reasonably practicable, gives the other Party the opportunity to attend and participate in such meeting or discussion.
(d) Parent REITDuring the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, Parent OP except as required by this Agreement or any Legal Requirements, Buyer and Parent Sub shall not, and its Affiliates shall not permit engage in any of their respective controlled Affiliates to, without the prior written consent of the Representative, action or enter into any merger, acquisition, joint venture or debt or equity financingtransaction, that would be reasonably foreseen to materially impair or delay Buyer’s ability to consummate the transactions contemplated by this Agreement or perform its obligations hereunder. Without limiting the generality of the foregoing, none of Buyer, the Subsidiaries of Buyer or their respective Affiliates shall acquire (whether by merger, consolidation, stock or asset purchase or otherwise), or agree to so acquire, any amounts of assets of or any equity in any other Person or any business or division thereof, unless that acquisition or agreement would not reasonably be expected to materially impair(i) increase the risk of not obtaining any authorizations, delay consents, orders, declarations or prevent approvals of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement, or (ii) increase the risk of any Governmental Entity entering an order prohibiting the consummation of the Financing transactions contemplated by this Agreement, or increase the Contemplated Transactionsrisk of not being able to remove any such order on appeal or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fox Factory Holding Corp)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each Buyer and Seller shall cooperate to make all filings and applications with and to, and obtain all licenses, permits, consents, approvals, authorizations, qualifications and orders of, applicable Governmental Entities. 48
(b) In furtherance of the parties provisions set forth in Section 6.3(a) and subject to the terms and conditions of this Agreement, each party hereto shall use its reasonable best efforts make an appropriate filing pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable, but in any event within five (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (35) Business Days to after the date of this Agreement and each such filing shall include a request for early termination or acceleration of any applicable waiting or review and comment on all materials or documents relating to this Transaction or any of period under the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) HSR Act. Subject to the terms and conditions herein providedof this Agreement, including Section 6.3(e), the parties shall cooperate with one another and use (and shall cause their respective affiliates and subsidiaries to use) their respective reasonable best efforts to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to cause the conditions to Closing to be satisfied as promptly as practicable and to consummate and make effective, in the event most expeditious manner practical, the transactions contemplated by this Agreement, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including, any claimrequired filings under the HSR Act), action(ii) resolve any objections that may be asserted by any Governmental Entity with respect to the transactions contemplated and (iii) make all filings, suitnotices and registrations and obtain all approvals, investigation or consents, registrations, authorizations and other proceeding by confirmations from any Governmental Entity or other Person is commenced which questions Person. Each Party shall not withdraw the validity HSR Filing unless all Parties otherwise agree in writing. Each Party shall supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be reasonably requested pursuant to the HSR Act.
(c) Each of Buyer and Seller will promptly notify the other of any written communication made to or legality received by either Buyer and/or Seller, as the case may be, from any Governmental Entity regarding any of the Contemplated Transactions transactions contemplated hereby, and, subject to applicable Law, if practicable, permit the other to review in advance any proposed written communication to any such Governmental Entity and incorporate the other’s reasonable comments, not agree to participate in any substantive meeting or seeks damages discussion with any such Governmental Entity in connection therewith, each respect of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suitany filing, investigation or inquiry concerning this Agreement or the transactions contemplated hereby unless, to the extent reasonably practicable, it consults with the other proceeding in advance and, if an injunction to the extent permitted by such Governmental Entity, gives the other the opportunity to attend, and furnish the other with copies of all correspondence, filings and written communications between it and its Affiliates and their respective Representatives on one hand and any such Governmental Entity or its respective staff on the other hand, with respect to this Agreement and the transactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, in no event shall any Party or its Affiliates be required to (i) disclose any information that in the reasonable judgment of such Party or any of its Affiliates (as the case may be) would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality, (ii) disclose any privileged, confidential or competitive information of such Party or any of its Affiliates, or (iii) disclose the valuation of, or any communications, analyses or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably work product regarding any other impediment to the consummation valuation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit Group Companies or the business properties or assets of the Group Companies. If any Party seeks to withhold information from any of their respective controlled Affiliates tothe other Parties for any reason permitted by this Section 6.3(c), without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.such Party shall designate such information 49
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Subthis Agreement, the Company and the Contributors shall parties agree (i) to use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement, (includingii) to execute any documents, without limitation, the satisfaction, but not waiver, instruments or conveyances of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing any kind which may be reasonably necessary or anything in this Agreement advisable to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to carry out any of the foregoing.
transactions contemplated hereunder, and (biii) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsforegoing. Without limiting the foregoing, the parties agree to use their respective reasonable efforts (A) Parent OP to obtain all necessary waivers, consents and Parent REIT approvals from any Person; provided, however that neither -------- ------- the Corporation nor Newco shall be given no less than three (3) Business Days required to review and comment on all materials make any payments, commence litigation or documents relating agree to this Transaction or any modifications of the parties hereto that is terms of any Contracts in order to obtain any such waivers, consents or approvals, (B) to obtain all necessary Permits as are required to be provided obtained under any Applicable Law, (C) to any lendergive all notices to, servicer or agent and make all registrations and filings with third parties, including without limitation submissions of information requested by Governmental Entities, (D) to reasonably cooperate with all potential sources of financing to the Corporation in connection with obtaining a Required Consent the Merger, and the other transactions contemplated by this Agreement, and to take all reasonable steps as may be necessary or advisable to consummate one or more financing transactions with such potential sources of financing, (E) to the extent necessary to obtain recapitalization accounting treatment of the Merger, taking reasonable actions to restructure the transactions contemplated by this Agreement; provided that -------- the Corporation will not be required to take any action that, in the Corporation's reasonable discretion, may materially delay the consummation of the Merger or may adversely affect the Cash Merger Price, the Preferred Merger Price, the Taxes payable by any holder of the Corporation's Common Stock or the risk of liability to any such holder and (F) to cause all conditions to this Agreement to be satisfied; provided, however that neither the Corporation nor -------- ------- Newco shall be required to make any payments or commence litigation in connection therewith.
(b) Each of the Corporation and Newco shall, as promptly as practicable, but in no event later than ten Business Days following the execution and delivery of this Agreement, file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the --- "DOJ") the notification and report form, if any, required for the transactions ---- contemplated hereby and any supplemental information requested in connection therewith pursuant to the HSR Act. Any such materials notification and report form and supplemental information shall be revised in substantial compliance with the requirements of the HSR Act. Each of Newco and the Corporation shall furnish to reflect the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any reasonable comments filing or submission that is necessary under the HSR Act. The Corporation and Newco shall keep each other apprised of Parent REIT the status of any communications with, and Parent OP with respect thereto any inquiries or requests for additional information from, the FTC and (B) the Group Companies DOJ and their representatives shall not engage or participate in any meeting or discussion or proposed discussion comply promptly with any lender, servicer such inquiry or agent request. Each of the Corporation and Newco shall use its reasonable efforts to obtain any clearance required under the HSR Act for the purpose consummation of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions contemplated by this Agreement.
(c) Subject Without limiting the foregoing, Newco shall use its commercially reasonable best efforts to obtain the requisite funds for the consummation of the transactions contemplated hereby, including the Merger, the Debt Offers (or the defeasance of the Senior Subordinated Notes and the redemption of the FIRSTS), and to pay the related fees and expenses, on substantially the terms and conditions herein provided, set forth in the event any claim, action, suit, investigation Financing Commitments or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionson substantially comparable terms.
(d) Parent REITWithout limiting the foregoing, Parent OP and Parent Sub the Corporation shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent defease all of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation outstanding Senior Subordinated Notes and redeem all of the outstanding FIRSTS at the Effective Time to the extent that the Debt Offer with respect to such Existing Notes has not been consummated, in each case, with the proceeds from the Financing or the Contemplated TransactionsCommitments.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties party hereto shall use its commercially reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things required under applicable Law, in order to consummate the transactions contemplated hereby, including, without limitation, (i) cooperate in obtaining all material respects with each permits, authorizations, consents and approvals of any Authority or other Person which are required for or in connection with obtaining the consummation of the transactions contemplated hereby and by the other Documents; provided, however, that no party shall be obligated to pay any consentconsideration to any third party from whom consent or approval is requested, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep taking any and all reasonable actions necessary to satisfy all of the other party informed conditions to such party’s obligations hereunder as set forth in Article VII, and (iii) executing and delivering all material respects agreements and on a reasonably timely basis of any material communication received documents required by the terms hereof to be executed and delivered by such party on or prior to the applicable Closing. Each party hereto shall refrain from taking any action to frustrate, hinder or delay the closing of its Affiliates from, or given the purchase and sale transaction contemplated by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsthis Agreement. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any generality of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewithforegoing, each of the parties hereto agrees shall (i) prepare and file any Notification and Report Forms and related material that it may be required to cooperate file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act within three (3) business days after the date hereof, (ii) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the Xxxx-Xxxxx-Xxxxxx Act and (iii) use their respective commercially reasonable efforts to defend against cause the expiration or termination of the applicable waiting periods under the Xxxx-Xxxxx-Xxxxxx Act as soon as practicable. Each of the Buyer, the Seller and/or the Foundation, as the case may be, shall (x) promptly notify the other of any written communication to that party from any Authority relating to this Agreement or the purchase and sale transaction contemplated hereby and, subject to applicable Law, if practicable, permit the other party to review in advance any proposed written communication to any such claimAuthority and incorporate such other party’s reasonable comments thereto, action, suit(y) not agree to participate in any substantive meeting or discussion with any such Authority in respect of any filing, investigation or inquiry concerning this Agreement or the purchase and sale transaction contemplated hereby unless it consults with the other proceeding party in advance and, if an injunction or to the extent permitted by such Authority, gives the other order is issued in party the opportunity to attend and (z) furnish the other party with copies of all correspondence, filings and written communications between it and its Affiliates and their respective representatives on one hand, and any such actionAuthority and its respective staff on the other hand, suit or other proceeding, with respect to use reasonable efforts to have such injunction or other order lifted, this Agreement and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionspurchase and sale transaction contemplated hereby.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate.
(a) Subject With respect to the terms and conditions herein providedany requests, inquiries, Actions or other proceedings by or from Governmental Authorities, each of Parent REITthe Company, Parent OPListCo and Merger Sub shall (i) diligently and expeditiously defend and use commercially reasonable efforts to obtain any necessary clearance, Parent Subapproval, consent under any applicable Laws prescribed or enforceable by any Governmental Authority for the Transactions and to resolve any objections as may be asserted by any Governmental Authority with respect to the Transactions; and (ii) cooperate fully with each other in the defense of such matters. To the extent not prohibited by Law, the Company shall promptly furnish to ListCo, and ListCo and Merger Sub shall promptly furnish to the Company, copies of any notices or communications received by such Party or any of its Affiliates from any Governmental Authority with respect to the Transactions, and each such Party shall permit counsel to the other parties an opportunity to review in advance, and each such Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party or its Affiliates to any Governmental Authority concerning the Transactions. To the extent not prohibited by Law, the Company agrees to provide ListCo and its counsel, and XxxxXx agrees to provide to the Company and its counsel, the opportunity, to the extent practical, on reasonable advance notice, to participate in any material substantive meetings or discussions, either in person or by telephone, between such Party or any of its Affiliates or Representatives, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions.
(b) During the Interim Period, ListCo, on the one hand, and the Contributors Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of ListCo, any Subsidiary of ListCo or any of their respective Representatives (in their capacity as a representative of ListCo or any Subsidiary of ListCo) or, in the case of the Company, any Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). ListCo and the Company shall each (i) keep the other Party timely informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at such other Party’s own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, and (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation. Notwithstanding the foregoing, in no event shall ListCo (or any of its Representatives) on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed).
(c) Each Party shall otherwise use its reasonable best efforts to cooperate with the other Parties to take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws or otherwise to satisfy the conditions to closing set forth in Article IX and to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement)Transactions. Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall (and shall cause its respective subsidiaries, if any, to use its reasonable best efforts to take all actions and to do all things necessary, proper or advisable under this Agreement and applicable Laws to consummate the Mergers and the other transactions contemplated by this Agreement as promptly as practicable, but subject to Parent’s right to extend the Closing pursuant to the proviso set forth in the first sentence of Section 1.4, including using its reasonable efforts to (ia) cooperate in all material respects make any filing with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to and obtain any consent, waivers authorization, order or approvals approval of, or any exemption by, any Governmental Entity that is required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party be made or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent obtained in connection with obtaining the Required Consents. Without limiting Mergers and the foregoingother transactions contemplated by this Agreement, (Ab) Parent OP prepare, execute and Parent REIT deliver such instruments and take or cause to be taken such actions as any other party shall be given no less than three reasonably request, and (3c) Business Days after consultation with the other parties, obtain any consent, waiver, approval or authorization from any third party required in order to review maintain in full force and comment on all materials effect any of the Company Permits or documents relating to the Company’s contracts, licenses or other rights following the Mergers and the other transactions contemplated by this Transaction or any Agreement. Each of the parties hereto that is shall furnish to be provided to any lender, servicer or agent each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with obtaining a Required Consent the foregoing. The parties shall use their respective reasonable best efforts to resist, contest or defend any suit, claim, action or proceeding (including administrative or judicial actions and proceedings) challenging the Mergers or the completion of the transactions contemplated hereby. Subject to applicable Law and the instructions of any such materials shall be revised to reflect any reasonable comments of Parent REIT Governmental Entity, the Company and Parent OP shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Company or Parent, as the case may be, or any of their respective subsidiaries, from any Governmental Entity and/or third party with respect thereto to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and (B) its counsel with the Group Companies and their representatives shall not engage or opportunity to participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose Governmental Entity in respect of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suitfiling, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages inquiry in connection therewith, each of with the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Merger Agreement (Ventas Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall Party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing Closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company AgreementX). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such Each Party will use reasonable best efforts to obtain any consentconsents of all Governmental Entities necessary to consummate the transactions contemplated hereby, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, and all costs incurred in connection with obtaining such consents shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingpaid by Xxxxx.
(b) Subject to the terms and conditions of this Agreement, each Each of the parties hereto Parties shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep promptly notify the other party informed in all material respects and on a reasonably timely basis Parties of any material communication received by such party it or any of its Affiliates fromreceives from any Governmental Entity relating to the matters that are the subject of this Agreement, or given and permit, to the extent permissible by applicable Law, the other Parties to review in advance any proposed communication by such party or Party to any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsGovernmental Entity. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating No Party to this Transaction or any of the parties hereto that is Agreement shall agree to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose Governmental Entity in respect of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suitfilings, investigation or other proceeding inquiry unless it reasonably consults with the other Parties in advance and, to the extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement, the Parties will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other Parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods in connection with the Heritage Opinion. Subject to the Confidentiality Agreement, the Parties will provide each other with copies of all correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Entity or members of its staff, on the other Person is commenced which questions hand, with respect to this Agreement and the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Each party hereto shall use its commercially reasonable efforts to take, or cause to be taken, all lawful and reasonable actions within such party's control and to do, or cause to be done, all lawful and reasonable things reasonably necessary, proper or advisable under applicable Law within such party's control necessary to fulfill the conditions precedent to the obligations of the other party(ies) hereunder and to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in transactions contemplated by this Agreement and to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsforegoing. Without limiting the generality of the foregoing: (a) the Company shall use commercially reasonable efforts to obtain those third party consents and other items set forth on Schedule 8.3 (the "Required Consents"); (b) the Company shall give the notices to, make the filings with, and use commercially reasonable efforts to obtain the authorizations, consents and approvals of, Governmental Authorities set forth on Schedule 8.3; and (Ac) Parent OP each party shall prepare and Parent REIT file any Notification and Report Forms and related material that such party may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, provided that no party shall request a waiver of the applicable waiting period, and shall make any further filings pursuant thereto that may be necessary, proper or advisable in connection therewith. Purchaser and its external counsel shall control and direct the antitrust approval strategy. In connection with the foregoing clause (c), the Company, the Company Subsidiaries, the Sellers and their Affiliates (x) shall promptly notify Purchaser in writing of any communication it receives from any Governmental Authority having jurisdiction over such filings, and subject to applicable Law and any applicable privilege, provide Purchaser with a copy of any such written communication (or written summary of any oral communication), and (y) shall not make submissions to or participate in any substantive meeting, discussion or other communication with any Governmental Authority having jurisdiction over such filings concerning the transactions contemplated by this Agreement unless it consults with Purchaser in advance, and to the extent not prohibited by such Governmental Authority, gives a Representative of Purchaser the opportunity to attend. Nothing in this Agreement shall be given no less than three (3) Business Days to review and comment on all materials construed as an attempt or documents relating to this Transaction an agreement by the Company or any of the parties hereto Company Subsidiaries to assign or cause the assignment of any contract or agreement that is to be provided to any lender, servicer by Law or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents contractual provision non-assignable without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representativeother party or parties thereto, enter into unless such consent shall have been given. In no event shall "commercially reasonable efforts" be deemed to require the payment of any mergercash or other consideration by the Company, acquisition, joint venture the Company Subsidiaries or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsany Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (Church & Dwight Co Inc /De/)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Each party hereto shall use its reasonable best efforts to take, or cause to be taken, all actions and appropriate action, to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Applicable Law, and to consummate execute and deliver such documents and other papers, as may be required to carry out the provisions of this Agreement and make effective the transactions contemplated by this Agreement as promptly as practicable the Contemplated Transactions possible (including, without limitation, the satisfaction, but not waiver, satisfaction of the closing applicable conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company AgreementSection 2.5). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days each party hereto shall, as promptly as possible, use reasonable best efforts to review and comment on all materials obtain, or documents relating to this Transaction or any of the parties hereto that is cause to be provided obtained, all approvals, consents and authorizations from Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement or the performance of its obligations under this Agreement and the other Transaction Agreements (including, without limitation, those set forth on Exhibit F, Exhibit G or Exhibit H hereto, as applicable) and, with respect to any lenderItem 3 on Exhibit G, servicer to the extent applicable, each party will continue to use reasonable best efforts after the Closing to obtain, or agent cause to be obtained, such approval. Each party hereto shall reasonably cooperate with each other party and its Affiliates in connection with obtaining a Required Consent such party seeking to obtain such approvals, consents and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, authorizations and shall not permit willfully take any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, action that would reasonably be expected to materially impairhave the effect of delaying, impairing or impeding the receipt of such approvals, consents and authorizations.
(c) Notwithstanding anything herein to the contrary, including this Section 4.3 or the “reasonable best efforts” standard, nothing in this Agreement shall require any party to take or refrain from taking or to agree to it or its Affiliates taking or refraining from taking any action, or to suffer to exist any restriction, condition or requirement that would constitute a Burdensome Condition, unless waived by Enstar (with respect to any Enstar Burdensome Condition), Trident (with respect to any Trident Burdensome Condition) or Xxxxxxx (with respect to any Xxxxxxx Burdensome Condition).
(d) All material analyses, appearances, meetings, discussions, presentations, memoranda, proposals or filings made by or on behalf of any party hereto before any Governmental Authority in connection with its execution and delivery of this Agreement or the performance of its obligations under this Agreement and the other Transaction Agreements shall be disclosed to Enstar and Trident in advance of any filing, submission or attendance, it being the intent of the parties hereto that Enstar and Trident will consult and cooperate with each other, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, proposals or filings.
(e) Each party shall cooperate and use commercially reasonable efforts to give all notices to, and obtain all consents from, all third parties that are described in Exhibit I; provided, however, that no party shall be obligated to pay any consideration therefor to any third party from whom consent or approval is requested.
(f) North Bay shall, and shall cause SFL to, comply with their respective obligations under the Core Purchase Agreement and shall not agree prior to the Closing to any waiver or amendment of the Core stockholders agreement (attached as an exhibit to the Core Purchase Agreement) without the consent of Trident solely to the extent such waiver or amendment would (i) affect the transfer provisions set forth therein so as to delay or prevent consummation impede the transactions contemplated by this Agreement or (ii) adversely affect Enstar’s right to appoint one or more directors to the Core board of directors. The Enstar Parties and North Bay shall keep the Trident Parties reasonably apprised on a prompt basis of the Financing or status of the Contemplated Transactionstransactions contemplated by the Core Purchase Agreement, including the receipt of any material correspondence from any Governmental Authority relating thereto. Notwithstanding anything to the contrary set forth in this Agreement, the Enstar Parties shall not be prohibited from terminating the Core Purchase Agreement if they are entitled to do so pursuant to the terms thereof.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company Buyer and the Contributors Sellers shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, including the satisfaction, but not waiver, of the closing Closing conditions set forth in Article 8 7), including (i) obtaining all consents, approvals and authorizations of all third parties necessary to consummate the entry into the Tax Matters AgreementsTransactions, together with the Member Guarantees (ii) making all necessary registrations and Capital Contribution Agreements that are exhibits theretofilings with, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement taking all steps as may be necessary to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))avoid an Action by, in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none (iii) defending any proceedings challenging this Agreement or the consummation of the Group Companies, Transactions (including seeking to avoid the Contributors, Parent REIT, Parent OP, Parent Subentry of, or to have reversed, terminated or vacated, any order entered by any Governmental Entity), and (iv) executing and delivering any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of their respective Affiliatesthis Agreement. Each of the Parties shall keep the other Parties reasonably apprised of the status of matters relating to the completion of the Transactions. The Parties shall reasonably cooperate with each other to furnish such necessary information and reasonable assistance as the other Parties may reasonably request in connection with obtaining all consents, approvals and authorizations of all Governmental Entities. To the extent not prohibited by applicable Law, each Party shall be obligated(A) promptly notify the other Parties, except as otherwise provided and, if in Annex E writing, furnish the other Parties with copies of (or, in the case of material oral communications, advise the other Parties orally of) any substantive communications from or Section 6.4(cwith any Governmental Entity with respect to the Transactions, (B) permit the other Parties to review and discuss in advance, and consider in good faith the views of such other Parties in connection with, any proposed written (or Section 6.5any material proposed oral) communication with any such Governmental Entity, (C) not participate in any meeting with any such Governmental Entity unless it notifies the other Parties in advance and, to incur the extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend and participate thereat, and (D) furnish the other Parties with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any liability, commence or threaten to commence any litigation, agree to any amendment such Governmental Entity with respect to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingTransactions.
(b) Subject to Without limiting the terms and conditions generality of this Agreementthe provisions of Section 6.4(a), each of Buyer and Sellers shall make all appropriate filings and submissions required of such Party by any Governmental Entity with respect to the parties hereto Transactions (including pursuant to any Antitrust Laws) promptly and in any event within fifteen (15) Business Days after the date of this Agreement and shall use supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested by such Governmental Entities (including pursuant to any Antitrust Laws). All filing fees incurred in connection with any filing or submission required to be made with or to any Brazilian Governmental Entity hereunder and compliance with any Brazilian Antitrust Laws shall be borne by Buyer. Buyer and its reasonable best efforts Affiliates Certain identified information marked with [***] has been excluded from this exhibit because it is not material and is of the type that the registrant treats as private and confidential.
(c) Buyer shall have responsibility for preparing and filing all consents, approvals and authorizations from all Governmental Entities necessary to consummate the Transactions under Brazilian Antitrust Laws. In furtherance of the foregoing obligation, Buyer and Sellers shall discuss in good faith the actions that are necessary or advisable or as may be required by any Governmental Entity to avoid impediments under any Antitrust Law; provided, however, that neither Party shall be required to take any such actions to the extent they may adversely affect its respective activities and business or the activities and business of the Companies and their respective Subsidiaries, including, but not limited to, any actions relating to sale or disposal of any entity, operation, division, facility or involving the termination, amendment or assignment of assets or rights, before or after the Closing. Sellers shall, and shall cause their Affiliates to (i) cooperate in fully with Buyer and shall provide to Buyer any and all material respects with each other necessary information and reasonable assistance as Buyer may reasonably request in connection with obtaining any consentsuch filings, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep respond to any requests by any Governmental Entity for information provided that, to the other party informed in all material respects and extent permitted under applicable Law, such information is submitted on a confidential basis, and (iii) keep Buyer reasonably timely basis informed of any material communication received by such party or any of the Sellers or its Affiliates fromfrom or to any Governmental Entity, and of any communication received or given by such party any Seller or any of its Affiliates tofrom or to a private party with respect to such proceedings, any lender, servicer in each case in a manner that protects attorney-client or agent attorney work product privilege.
(d) In furtherance and not in connection with obtaining the Required Consents. Without limiting limitation of the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to notwithstanding any provision of this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject Agreement to the terms and conditions herein providedcontrary, in the event that any claim, action, suit, investigation or other proceeding Action by any Governmental Entity or other Person is commenced which or threatened or any order is entered by any Governmental Entity that questions or challenges the validity or legality of the Contemplated Transactions or otherwise seeks damages in connection therewithto prohibit, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claimprevent, actiondelay, suit, investigation interfere with or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the restrict consummation of the Contemplated Transactions.
(d) Parent REITTransactions in accordance with the terms of this Agreement, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impairdo so, delay the Parties shall oppose fully and vigorously any such Action or prevent consummation order, including by defending through litigation any such Action or order, and vigorously pursuing all available avenues of the Financing administrative and judicial appeal in order to vacate, lift, reverse, overturn, settle or the Contemplated Transactionsotherwise resolve any such Action or order as promptly as practicable.
Appears in 1 contract
Samples: Share Purchase Agreement (New Fortress Energy Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 7 and the entry into approval by the Tax Matters Agreements, together applicable Governmental Authorities of the amend and restate the Organizational Documents of Parent). All of the filing fees under any Antitrust Laws or other filings with Governmental Authorities in connection with the Member Guarantees Reorganization will be paid in full by the UEC Parties. Each Party shall make an appropriate filings and Capital Contribution Agreements that are exhibits theretonotices, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement if necessary, pursuant to all applicable Antitrust Laws with respect to the contrary Transactions promptly (including and in any event, within 30 days after the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions date of this Agreement, each of ) and shall supply as promptly as practicable to the parties hereto shall use its reasonable best efforts to (i) cooperate in all appropriate Governmental Authorities any additional information and documentary material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as that may be necessary or desirable requested pursuant to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsLaws. Without limiting the foregoing, (i) SPAC, on the one hand, and the UEC Parties, on the other hand, and in each case including their respective Affiliates, shall not take any action that has or may have the effect of extending any waiting period or comparable period under any applicable Antitrust Laws or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Party, and (ii) except for conduct remedies in respect of the operation of the businesses of the Group Companies which are not, individually or in the aggregate, material to the operation of the businesses of the Group Companies, the UEC Parties shall not be obligated to: (A) Parent OP sell, license or otherwise dispose of, or hold separate and Parent REIT shall be given no less than three agree to sell, license or otherwise dispose of (3x) Business Days to review and comment on all materials any entities, assets or documents relating to this Transaction facilities of any Group Company after the Closing or (y) any entity, facility or asset of TRA or its Affiliates before or after the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and Closing; (B) the Group Companies terminate, amend or assign existing relationships and their representatives shall not engage contractual rights and obligations; or participate in any meeting (C) amend, assign or discussion terminate existing licenses or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPother agreements.
(cb) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Action by any a Governmental Entity Authority or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use all reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Action and, if an injunction or other order is issued in any such action, suit or other proceeding, to use all reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(dc) Parent REIT, Parent OP and Parent Sub The Parties shall notpermit counsel for any other Party reasonable opportunity to review in advance, and shall not permit any of their respective controlled Affiliates to, without consider in good faith the prior written consent views of the Representativeother Party in connection with, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected proposed written communication to materially impair, delay or prevent consummation any Governmental Authority relating to the Transactions. Each of the Financing Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Authority in connection with the Contemplated TransactionsTransactions unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Authority, gives the other Party the opportunity to attend and participate in such meeting or discussion.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, and the Company shall, and the Contributors shall cause each of its Subsidiaries to, use their respective commercially reasonable efforts (subject to compliance with applicable Law) to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as practicable after the date hereof the transactions contemplated by this Agreement, including (i) preparing as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the transactions contemplated by this Agreement (collectively, the “Governmental Approvals”) and (ii) as reasonably promptly as practicable taking all steps as may be reasonably necessary, proper or advisable under applicable Law to consummate and make effective obtain all such Governmental Approvals as promptly soon as reasonably practicable (but in any event on or prior to the Contemplated Transactions (includingEnd Date); provided, without limitationhowever, the satisfaction, but not waiver, that in no event shall any of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, parties hereto or any of their respective Subsidiaries or Affiliates be required to (and in no event shall the Company or any of its Subsidiaries or Affiliates, shall be obligatedwithout Parent’s prior written consent) pay any consideration or make any agreement or commitments in any case prior to the Effective Time in connection with obtaining any such approvals, except consents, waivers, registrations, permits, authorizations or other confirmations from any such third parties. In furtherance and not in limitation of the foregoing, each party hereto agrees to (A) make an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby within 10 Business Days of the Agreement Date, (B) make all other required filings pursuant to other Regulatory Laws with respect to the transactions contemplated hereby, including pursuant to the merger notification or control Laws of applicable foreign jurisdictions with respect to the transactions contemplated hereby, as otherwise provided in Annex E soon as reasonably practicable, and (C) not extend any waiting period under the HSR Act or Section 6.4(center into any agreement with the Federal Trade Commission (the “FTC”) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement the United States Department of Justice (the “DOJ”) or any other Transaction DocumentGovernmental Entity not to consummate the transactions contemplated by this Agreement, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any except with the prior written consent of the foregoingother party hereto (which shall not be unreasonably withheld, conditioned or delayed). Parent and the Company shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Regulatory Law and use its commercially reasonable efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible.
(b) Subject Each of Parent and the Company shall, in connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals for the terms and conditions of transactions contemplated by this AgreementAgreement under the HSR Act or any other Regulatory Laws, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consentcommunication, waiver filing or submission and in connection with any investigation or other accommodation (inquiry, including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other Governmental Entity or other person, give the other party and/or its Affiliates tocounsel the opportunity to attend and participate in such meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any lenderother Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the businesses of the Company and its Subsidiaries. Parent and the Company may, servicer as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or agent directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Notwithstanding anything to the contrary contained in this Agreement, Parent, after, to the extent practicable, prior consultation with the Company, shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust, competition or investment review clearances, including in connection with the determination of any actions to be taken under Section 6.03(e), and shall take the lead in all meetings and communications with any Governmental Entity in connection with obtaining the Required Consents. Without limiting the foregoingany necessary antitrust, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to competition or investment review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPclearances.
(c) Subject Notwithstanding any other provision of this Agreement to the terms and conditions herein providedcontrary, in no event shall Parent or any of its Subsidiaries or Affiliates be required to agree to (nor shall the event Company or any claimof its Subsidiaries agree unless Parent so directs them (and they shall, actionif Parent so directs, suitagree, investigation so long as such agreements are conditioned upon the Closing)), to (i) sell, hold separate or otherwise dispose of all or a portion of its respective business, assets or properties, or conduct its business in a specified manner, (ii) pay any amounts (other proceeding by than the payment of filing fees and expenses and fees of counsel or any nominal payments), or grant any counterparty to any Contract any meaningful accommodation, (iii) limit in any manner whatsoever the ability of such entities to conduct, own, operate or control any of their respective businesses, assets or properties or of the businesses, properties or assets of the Company and the Company Subsidiaries, (iv) waive any of the conditions set forth in Article VII, or (v) initiate, defend, participate in, continue, or appeal any Action in order to obtain the successful termination of any review of any review of any Governmental Entity regarding the Merger or the other Person is commenced which questions Transactions, or any related matter brought by or on behalf of any Governmental Entity. Notwithstanding the validity foregoing or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment provision of this Agreement, nothing in this Section 6.03 shall limit a party’s right to the consummation of the Contemplated Transactionsterminate this Agreement pursuant to Section 8.01(b) so long as such party has, prior to such termination, complied with its obligations under this Section 6.03.
(d) Parent REITThe Company shall give prompt written notice to Parent, Parent OP and Parent Sub shall notgive prompt written notice to the Company, and shall not permit of (i) the occurrence, or failure to occur, of any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture event which occurrence or debt failure to occur has resulted in or equity financing, that would reasonably be expected to materially impair, delay result in the failure to satisfy or prevent consummation be able to satisfy any of the Financing conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement to the extent such consent is material to the Company; and (iii) any material written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(d) shall not limit or otherwise affect the remedies available hereunder to Parent or the Contemplated Company.
(e) Neither Parent nor Merger Sub shall, nor shall they permit their respective Subsidiaries to, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected to increase the risk of not obtaining any applicable clearance, consent, approval or waiver under Regulatory Laws with respect to the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Mocon Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, and the Company shall, and the Contributors shall cause their respective Affiliates to, use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective as reasonably promptly as practicable after the Contemplated Transactions date hereof and in any event no later than the End Date the transactions contemplated by this Agreement, including (includingi) preparing as reasonably promptly as practicable all necessary applications, without limitationnotices, petitions, filings, ruling requests and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the transactions contemplated by this Agreement (collectively, the satisfaction“Governmental Approvals”) and (ii) as reasonably promptly as practicable taking all steps as may be necessary to obtain all such Governmental Approvals, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements provided that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything nothing in this Agreement shall require Parent to agree to invest any additional capital in the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Company or any of their respective Affiliates, shall be obligated, except as its Affiliates prior to the Closing or otherwise provided in Annex E take any action or Section 6.4(c) commit to take any action or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment condition or restriction that would reasonably be expected to this Agreement have a material adverse effect on the business, assets, liabilities or any other Transaction Documentoperations of Parent or its Affiliates, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.taken as
(b) Subject Each of Parent and the Company shall (and shall cause their respective Affiliates), in connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals under the terms and conditions of this AgreementHSR Act or any other Regulatory Laws, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consentcommunication, waiver filing or submission and in connection with any investigation or other accommodation (inquiry, including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and proceeding initiated by a private party; (ii) subject to any duty of confidentiality which either party may owe to any Governmental Entity or any duty of privacy to any individual, keep the other party and/or its counsel informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other Governmental Entity or other person, give the other party and/or its Affiliates tocounsel the opportunity to attend and participate in such meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any lender, servicer other Governmental Entity (with the exception of any initial filing pursuant to the HSR Act); provided that (A) materials may be redacted (i) for privilege or agent (ii) to remove references concerning the valuation of the businesses of the Company and the Company Subsidiaries; and (B) nothing in this Section 6.03(b) shall require Parent to share any materials to be provided to the Financial Conduct Authority (“FCA”) in connection with obtaining Governmental Approvals or to consult with the Required ConsentsCompany in connection with any communications with the FCA. Without limiting Parent and the foregoingCompany may, (A) Parent OP as each deems advisable and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or necessary, reasonably designate any of the parties hereto that is competitively sensitive material to be provided to any lender, servicer or agent in connection with obtaining a Required Consent the other under this Section 6.03(b) as “Antitrust Counsel Only Material.” Such materials and any such materials the information contained therein shall be revised given only to reflect any reasonable comments the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without Company, as the participation of Parent REIT case may be) or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPits legal counsel.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein providedSection 4.8, each of Parent REIT, Parent OP, Parent Sub, the Company and parties hereto (other than the Contributors Stockholders’ Representative) shall use its reasonable best efforts to take, or cause to be taken, all lawful and reasonable actions within such party’s control and to do, or cause to be done, all lawful and reasonable things reasonably necessary, proper or advisable under applicable Law within such party’s control necessary to fulfill the conditions precedent to the obligations of the other parties hereunder and to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consentthe foregoing. Without limiting the generality of the foregoing, waiver or but subject to Section 4.8, each party to this Agreement (other accommodation than the Stockholders’ Representative): (including the Required Consentsa) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals shall make all filings and other submissions (if any) and give all notices (if any) required to consummate the Contemplated Transactions be made and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received given by such party in connection with the Merger and the other Transactions; and (b) shall use reasonable best efforts to obtain each consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other Transactions. In addition, each of the Company, Parent and Merger Sub shall use their reasonable best efforts to lift any injunction prohibiting, or any other legal bar to, the Merger or any of the other Transactions. Nothing in this Agreement shall be construed as an attempt or an agreement by the Company or any of its Affiliates from, Subsidiaries to assign or given cause the assignment of any Contract or Permit which is by such Legal Requirement non-assignable without the consent of the other party or any parties thereto, unless such consent shall have been given.
(b) Prior to the Closing Date, the Company shall use commercially reasonable efforts to obtain written consents to the change of its Affiliates tocontrol provisions in and/or the assignment of, any lenderand to provide the notices required under the change of control provisions in (or obtain written waivers thereto), servicer or agent the Contracts in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any Section 4.4 of the parties hereto that is Disclosure Schedule, and in each case shall provide evidence of the same to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPParent.
(c) Subject Notwithstanding any other provision hereof, no party to this Agreement (other than the Stockholders’ Representative) will knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the terms and conditions herein providedMerger set forth in Section 6 not being satisfied in a timely manner, in the event or any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person action that is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected likely to materially impairimpair its ability to perform its obligations under this Agreement or to consummate the transactions contemplated hereby, delay or prevent consummation of the Financing or the Contemplated Transactionsexcept as required by applicable Legal Requirements.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))VI and, in exercising the case of any Ancillary Document to which such reasonable efforts to obtain any consent, waiver or other accommodation (including Party will be a party after the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5Original Date, to incur any liability, commence or threaten execute and deliver such Ancillary Document when required pursuant to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in Company taking, or causing to be taken, all material respects and actions necessary or advisable to cause the agreements set forth on a reasonably timely basis Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as of the Closing without any material communication received by such party further obligations or Liabilities to the Company or any of its Affiliates from(including the other Group Companies and, from and after the Closing, Armada)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or given deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by such party this Agreement or the Ancillary Documents. Armada shall promptly inform the Company of any material communication between Armada, on the one hand, and any Governmental Entity, on the other hand, and the Company shall promptly inform Armada of any material communication between the Company or any other Group Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of its Affiliates to, the transactions contemplated by this Agreement or any lender, servicer or agent in connection with obtaining the Required ConsentsAncillary Document. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies each Party and their representatives respective Affiliates shall not engage or participate in enter into any meeting or discussion or proposed discussion agreement with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity not to consummate the transactions contemplated hereby or other Person is commenced which questions by the validity or legality of the Contemplated Transactions or seeks damages in connection therewithAncillary Documents, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of Armada and the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation Company. In furtherance and not in limitation of the Financing foregoing in this Section 5.2(a), to the extent required under any Antitrust Laws, each party hereto agrees to promptly (and in connection with any required filings under the HSR Act, no later than ten (10) Business Days after the Original Date) make any required filing or application under Antitrust Laws, as applicable. Further, notwithstanding anything to the Contemplated Transactionscontrary contained in this Agreement, the Parties agree and acknowledge that any costs or fees related to any required filing or application under Antitrust Laws shall be borne 50/50 by Armada and the Company.
(b) Notwithstanding anything to the contrary in the Agreement, in the event that this Section 5.2 conflicts with any other covenant or agreement in this Article V that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.
Appears in 1 contract
Samples: Business Combination Agreement (Armada Acquisition Corp. I)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedherein, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, satisfaction of the closing conditions set forth in Article 8 X). Without limiting the generality of the foregoing, each of the Parties shall use commercially reasonable efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Authorities necessary to consummate the Transactions and the entry into transactions contemplated by the Tax Matters Transaction Agreements. SPAC shall promptly inform the Company of any communication between any SPAC Party, together with on the Member Guarantees one hand, and Capital Contribution Agreements that are exhibits theretoany Governmental Authority, on the other hand, and the New Company shall promptly inform SPAC of any communication between the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement.
(b) During the Interim Period, the SPAC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of any SPAC Party) or SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of SPAC, the Company, or, in the case of the Company, SPAC, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of SPAC, the Company, or, in the case of the Company, SPAC, the opportunity to attend and participate in such meeting or discussion.
(c) Notwithstanding anything to the foregoing contrary in the Agreement, (i) if this Section 9.01 conflicts with any other covenant or anything agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the contrary extent of such conflict and (ii) in no event shall the SPAC Parties or Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(d) During the Interim Period, SPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any stockholder demands or other stockholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the preceding sentence of this Section 6.4(a“Transaction Litigation”) and Section 9.1(f))commenced against, in exercising such reasonable efforts to obtain the case of SPAC, any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, SPAC Parties or any of their respective AffiliatesRepresentatives (in their capacity as a representative of a SPAC Party) or, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement the case of the Company or any other Transaction Documentof its Subsidiaries, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
their respective Representatives (b) Subject to the terms and conditions in their capacity as a representative of this Agreement, each a member of the parties hereto Company). SPAC and the Company shall use its reasonable best efforts to each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate in all material respects with each the other in connection with obtaining the defense, settlement and compromise of any consentsuch Transaction Litigation (subject to a customary joint defense agreement), waiver or other accommodation (including iii) consider in good faith the Required Consents) from other’s advice with respect to any Person as may be necessary or desirable to obtain any consentsuch Transaction Litigation, waivers or approvals required to consummate the Contemplated Transactions and (iiiv) keep reasonably cooperate with each other. In no event shall the other party informed in all material respects and on a reasonably timely basis of Company or SPAC settle or compromise any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, Litigation without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing SPAC or the Contemplated TransactionsCompany, respectively (not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 7 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and delivery of such Ancillary Document, (ii) using reasonable best efforts to (A) obtain the entry into PIPE Financing on the Tax Matters Agreementsterms and subject to the conditions set forth in the Subscription Agreements and (B) in the case of the Company, together cause the Company Shareholders representing 92% of issued and outstanding Company Shares, immediately prior to the Closing, to be party to and bound by the Shareholder Undertaking and take all actions necessary or advisable to effect to the Exchange and (iii) the Company taking all actions necessary or advisable to cause the agreements set forth on Schedule 6.2(a) to be, subject to any conditions precedent expressly set forth thereon, terminated effective as of the Closing without any further obligations or liabilities to TopCo or any of its Affiliates (including the Group Companies or ARYA)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents. The Company shall bear the costs incurred in connection with obtaining such Consents; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the Member Guarantees preparation of any such Consents. ARYA shall promptly inform the Company of any communication between ARYA, on the one hand, and Capital Contribution Agreements that are exhibits theretoany Governmental Entity, on the other hand, and the New Company Agreement). Notwithstanding shall promptly inform ARYA of any communication between the foregoing Company, TopCo or anything in this Agreement to either Merger Sub, on the contrary (including the preceding sentence of this Section 6.4(a) one hand, and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none on the other hand, in either case, regarding any of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to transactions contemplated by this Agreement or any other Transaction Ancillary Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to From and after the terms and conditions date of this Agreement, each Agreement until the earlier of the parties hereto Closing or termination of this Agreement in accordance with its terms, ARYA, on the one hand, and the Company, TopCo and the Merger Subs, on the other hand, shall use its give counsel for the Company (in the case of ARYA) or ARYA (in the case of the Company, TopCo and/or the Merger Subs) a reasonable best efforts opportunity to (i) cooperate review in all material respects with each advance, and consider in good faith the views of the other in connection with obtaining with, any consent, waiver or other accommodation (including the Required Consents) from proposed written communication to any Person as may be necessary or desirable Governmental Entity relating to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis Consent of any material communication received Governmental Entity contemplated by such party this Agreement or any Ancillary Document. Each of its Affiliates fromthe Parties agrees not to participate in any substantive meeting or discussion, either in person or given by such party or telephone with any of its Affiliates to, any lender, servicer or agent Governmental Entity in connection with obtaining any Consent of any Governmental Entity contemplated by this Agreement unless it consults with, in the Required Consents. Without limiting case of ARYA, the foregoingCompany, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any or, in the case of the parties hereto that is Company, TopCo and/or the Merger Subs, ARYA in advance and, to be provided the extent not prohibited by such Governmental Entity, gives, in the case of ARYA, the Company, or, in the case of the Company, TopCo and/or the Merger Subs, ARYA, the opportunity to any lender, servicer or agent in connection with obtaining a Required Consent attend and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any such meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPdiscussion.
(c) Subject Notwithstanding anything to the terms and conditions herein providedcontrary in the Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding that this Section 6.2 conflicts with any other impediment covenant or agreement in this Article 6 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the consummation extent of the Contemplated Transactionssuch conflict.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Business Combination Agreement (Arya Sciences Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms Seller shall, and conditions herein provided, shall cause each of Parent REITits Affiliates to, Parent OPat Seller’s expense, Parent Sub, the Company and the Contributors shall use their commercially reasonable efforts to take, or cause to be taken, take all actions action and to do, or cause to be done, do all things necessary to consummate, as soon as reasonably necessarypracticable, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (transactions contemplated hereby, including, without limitation, (i) obtaining all Consents referred to in Section 3.6, at the satisfactionsole cost and expense of Seller, but not waiver(ii) filing all forms, of registrations and notices required to be filed to consummate the closing conditions set forth in Article 8 transactions described herein and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts taking all actions necessary to obtain any consentrequisite approvals, waiver consents, Orders, exemptions, waivers or other accommodation (including the Required Consents) Consents by or from any Person Person, and (iii) satisfying the conditions to Buyer’s obligation to close the transactions contemplated hereby and avoiding taking any action that is not a Governmental Entity, none of could reasonably be expected to materially delay the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Subobtaining of, or result in not obtaining, any of their respective AffiliatesConsent from any Person, shall including without limitation any Governmental Body necessary to be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, obtained prior to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingClosing.
(b) Subject After the date hereof, Seller shall consult with Buyer prior to making any filings with, or having any communications with, any Governmental Body with respect to the terms and conditions of Business or this Agreement. Prior to the Closing, each of party shall promptly consult with the parties other party hereto shall use with respect to, provide any necessary information with respect to, and provide the other party (or its reasonable best efforts respective counsel) with copies of, all filings made by such party with any Governmental Body or any other information supplied by such party to (i) cooperate in all material respects with each other a Governmental Body in connection with obtaining this Agreement and the transactions described herein. Each party hereto shall promptly inform the other of any consent, waiver or other accommodation (including the Required Consents) communication from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or Governmental Body regarding any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions contemplated herein.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein of this Agreement, Purchaser shall use its best efforts to cause the Closing to occur and to cause the conditions set forth in Section 2.2 to be satisfied, including (i) defending against any Proceeding challenging this Agreement or the consummation of the transactions contemplated hereby and (ii) seeking to have any preliminary injunction, temporary restraining order, stay or other legal restraint or prohibition entered or imposed by any court or other Governmental Authority that is not yet final and non-appealable vacated or reversed; provided, each however, that (A) Purchaser shall not be required to waive any of Parent REITthe conditions set forth in Section 2.1, Parent OPand (B) Purchaser shall not be required to make any monetary expenditure, Parent Subcommence or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any third Person.
(b) In furtherance and not in limitation of the foregoing, the Company and the Contributors Purchaser 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 reasonably necessary, proper or advisable necessary under applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement, and to comply as promptly as practicable with all legal requirements which may be imposed on it with respect to this Agreement and the Contemplated Transactions transactions contemplated hereby by any Governmental Authority with regulatory jurisdiction over enforcement of any applicable Law (includingwhich actions shall include furnishing all information required by applicable Law in connection with approvals of or filings with any Governmental Authority), without limitationincluding the following:
(i) filing, the satisfactionor causing to be filed, as promptly as practicable, but not waiverin no event later than five Business Days following the execution and delivery of this Agreement, any required notification and report forms under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the closing conditions set forth United States Department of Justice;
(ii) providing for review and approval, as promptly as practicable, but in Article 8 no event later than five Business Days following the execution and the entry into the Tax Matters Agreementsdelivery of this Agreement, together all necessary applications and filings in connection with the Member Guarantees Required Actions, each of which shall contain complete information and Capital Contribution Agreements that are exhibits thereto, all materials required by the applicable Governmental Authority; providing all comments on the applications and filings required in connection with the New Company Agreement). Notwithstanding Required Actions within five Business Days after receiving such applications and filings; and promptly filing such applications and filings with the foregoing or anything in this Agreement to the contrary appropriate Governmental Authority after making such changes required by such comments within three Business Days after receiving such comments;
(including the preceding sentence of this Section 6.4(aiii) and Section 9.1(f)), in exercising such reasonable efforts to obtain obtaining any consent, waiver authorization, order or other accommodation (including the Required Consents) from approval of, or any Person that is not a exemption by, any Governmental EntityAuthority required to be obtained or made by Seller, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Purchaser or any of their respective AffiliatesAffiliates in connection with the transactions contemplated by this Agreement; and
(iv) securing clearance under all applicable Antitrust Law (including the expiration or termination of any applicable waiting period under the HSR Act); provided further that Seller shall take all actions necessary to ensure that no Governmental Antitrust Authority (A) with the authority to clear, authorize or otherwise approve the consummation of the transactions contemplated by this Agreement fails to do so or (B) enters any decision, order, decree, ruling or injunction restraining, enjoining or prohibiting the consummation of the transactions contemplated by this Agreement, including agreeing to any structural or conduct relief with respect to the assets of Purchaser or any of its Affiliates or of the Company and the CHUHC Subsidiaries (including executing agreements and submitting to judicial or administrative orders to hold separate and divest any such assets), or at the request of Seller, litigating any such matter; provided, however, that nothing in this Section shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, require Purchaser to incur make any liabilitymonetary expenditure, commence or threaten to commence participate in any litigation, agree to any amendment to this Agreement litigation or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any third Person. Purchaser shall furnish to Seller such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR Act, the Required Actions or any other Law. Purchaser shall keep Seller apprised of the foregoing.
status of any communications with, and any inquiries or requests for additional information from, the Governmental Antitrust Authorities and other Governmental Authorities, and shall comply as promptly as practicable with any such inquiry or request. Purchaser agrees to instruct its counsel to cooperate with Seller's counsel and use their respective best efforts to facilitate and expedite the identification and resolution of any issues arising under the HSR Act, the Required Actions and any other applicable Law at the earliest practicable dates. Said best efforts and cooperation shall include counsel’s undertaking (b) Subject to the terms extent permitted by applicable Law and conditions of in each case regarding the transactions contemplated by this AgreementAgreement and without waiving attorney-client, each of the parties hereto shall use its reasonable best efforts work-product or any other applicable privilege) to (i) cooperate in all material respects with furnish to each other’s counsel such reasonably necessary information and reasonable assistance as the other may request in connection with obtaining its preparation of any consentfiling or submission that is necessary under the HSR Act, waiver or other accommodation (including the Required Consents) from Actions and any Person as may be necessary or desirable to obtain any consentother applicable Law, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep cooperate in the other party informed in all material respects and on a reasonably timely basis filing of any material communication received substantive memoranda, white papers, filings, correspondence or other written or oral communications explaining or defending this Agreement or any of the transactions contemplated hereby, articulating any regulatory or competitive argument or responding to requests or objections made by such party any Governmental Authority or other Person. Neither Purchaser nor any of its Affiliates from, or given by such party or Representatives shall independently contact any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage Governmental Authority or participate in any meeting or discussion (or proposed discussion any other communication by any means) with any lenderGovernmental Authority in respect of any such filings, servicer applications, investigation or agent other inquiry without giving, the other party prior reasonable notice of the meeting or discussion, the opportunity to confer with each other regarding appropriate contacts with and responses to personnel of said Governmental Authority, the opportunity to review and comment on the contents of any representations (oral or otherwise) expected to be communicated at the meeting or discussion, and, to the extent permitted by the relevant Government Authority, the opportunity to attend and participate at the meeting or discussion. Purchaser shall pay for all costs and expenses incurred by Purchaser or any of its Affiliates to comply with this Section, and shall be responsible for any filing fees under the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPHSR Act.
(c) Subject to During the terms period from the date hereof and conditions herein provided, in continuing until the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality earlier of the Contemplated Transactions or seeks damages Closing and the termination of this Agreement in connection therewithaccordance with its terms, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of the RepresentativeSeller (which consent shall not be unreasonably withheld, enter conditioned or delayed), Purchaser and its Affiliates shall not do anything, including entering into any merger, acquisition, joint venture transaction (or debt making any antitrust or equity financingcompetition law filing in connection with such transaction), that would could reasonably be expected to materially impairprevent or delay any filings or approvals required under the HSR Act, delay the Required Actions or prevent consummation of the Financing or the Contemplated Transactionsother applicable Law.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein providedset forth in this Agreement, each of Parent REITthe Parties hereto shall, Parent OPand shall cause any of its subsidiaries to, Parent Sub, the Company and the Contributors shall use its commercially reasonable efforts (subject to, and in accordance with, applicable law) to taketake promptly, or to cause to be taken, all actions actions, and to dodo promptly, or to cause to be done, and to assist and to cooperate with the other Parties in doing, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions Recapitalization, Merger and Exchange, including (includingi) obtaining all necessary actions or nonactions, without limitationwaivers, the satisfactionconsents and approvals, but not waiver, of the closing conditions set forth in Article 8 including from Governmental Entities and the entry into the Tax Matters Agreements, together with the Member Guarantees making of all necessary registrations and Capital Contribution Agreements that are exhibits thereto, filings and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence taking of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none (ii) obtaining all necessary consents, approvals or waivers from third parties, if any, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, the Merger Agreement or the consummation of the Group Companies, transactions contemplated hereby and (iv) executing and delivering any additional instruments reasonably necessary to consummate the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingtransactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, each of Holdings and the Consenting Noteholders will (i) promptly, but in no event later than fifteen (15) days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, including but not limited to approvals from the FCC approving the transactions contemplated by the Exchange (the "FCC APPROVAL"), and (iii) use commercially reasonable efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Exchange, the Merger and the other transactions contemplated hereby.
(c) In furtherance and not in limitation of the covenants of the Parties contained in this Section 8.5 if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Exchange, the Merger or any other transaction contemplated by this Agreement, each of the parties hereto Holdings, Investco and Wireless shall use its respective commercially reasonable best efforts to (i) efforts, and the Consenting Noteholders shall cooperate in all material respects with each other in connection with obtaining any consentHoldings, waiver Investor or other accommodation (including the Required Consents) from any Person as may be necessary or desirable Wireless, to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions contest and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and resist any such materials shall be revised action or proceeding and to reflect have vacated, lifted, reversed or overturned any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lenderdecree, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein providedjudgment, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order order, whether temporary, preliminary or permanent, that is issued in any such actioneffect and that prohibits, suit prevents or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the restricts consummation of the Contemplated TransactionsExchange, the Merger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 8.5 shall limit a Party's right to terminate this Agreement pursuant to Section 11.1(c) or 11.1(d) so long as such party has, prior to such termination, complied with its obligations under this Section 8.5.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Exchange Agreement (Pardus Capital Management L.P.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use its reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, but not waiverincluding the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the conditions precedent to consummating the transactions contemplated by this Agreement. Each party agrees to cooperate fully with the other party in assisting it to comply with this Section 6.9. Without limiting the generality of the closing conditions foregoing, (i) the Company agrees to cause its Personnel to provide all reasonable cooperation in connection with the arrangement of any financing as Buyer shall request and (ii) each party hereto shall defend and cooperate with each other party in defending any legal proceedings, whether judicial or administrative and whether brought derivatively or on behalf of third parties, challenging this Agreement or the consummation of the transactions contemplated hereby. Except as set forth in Article 8 and Schedule 6.9, no consideration, whether such consideration shall consist of the entry into payment of money or shall take any other form, for any consent, waiver or agreement necessary to the Tax Matters Agreements, together with consummation of the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and transactions contemplated hereby shall be given or promised by the New Company Agreement)without the prior written approval of Buyer. Notwithstanding the foregoing foregoing, nothing contained herein shall require (i) any party hereto or anything any of its respective Affiliates to sell, transfer, divest or otherwise dispose of any of its respective business, assets or properties in connection with this Agreement or any of the transactions contemplated hereby or (ii) any party hereto to the contrary initiate any litigation, make any substantial payment or incur any material economic burden (including the preceding sentence as a result of this Section 6.4(a) and Section 9.1(f)any divestiture), in exercising such reasonable efforts except for payments a party presently is contractually obligated to make, to obtain any consent, waiver waiver, authorization, order or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingapproval.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Party shall use its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not the waiver, of the closing Closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement7). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto Buyer shall use its reasonable best efforts to (i) cooperate in obtain all material respects with each other in connection with obtaining any consent, waiver consents of all Governmental Entities or other accommodation (including the Required Consents) from any Person as may be expiration of all waiting periods necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions transactions contemplated by this Agreement and Seller and the Company shall provide all reasonable assistance requested by Buyer in connection therewith. All HSR Act filing fees shall be borne by Buyer. Each Party shall make an appropriate filing, if necessary, pursuant to the HSR Act (iior any similar non-U.S. Laws) keep with respect to the other party informed transactions contemplated by this Agreement promptly (and in all material respects any event, within three (3) Business Days) after the date of this Agreement (and on a reasonably timely basis any such filing shall request “early termination” of any applicable waiting periods) and shall supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material communication received by such party that may be requested pursuant to the HSR Act (or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentssimilar non-U.S. Laws). Without limiting the foregoing, Seller, the Company, Buyer and their respective Affiliates shall not extend any waiting period or comparable period under the HSR Act (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to similar non-U.S. Laws) or enter into any lender, servicer or agent in connection agreement with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions not to consummate the validity or legality of the Contemplated Transactions or seeks damages in connection therewithtransactions contemplated hereby, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of the Representativeother Parties.
(b) Notwithstanding anything to the contrary in this Agreement, enter into neither Buyer nor any mergerof its Affiliates shall be obligated to: (i) offer, acquisitionnegotiate, joint venture commit to or debt effect, by consent decree, hold separate order, trust or equity financingotherwise, the sale, divestiture, license or other disposition of any capital stock, assets, rights, products or businesses of Buyer or any of its Affiliates; (ii) agree to any material restrictions on the activities of Buyer or its Affiliates; or (iii) waive any of the conditions set forth in Article 7 of this Agreement.
(c) In the event that a Governmental Entity issues a request for additional information or documentary material pursuant to the HSR Act (the “Second Request”) in connection with the transactions contemplated by this Agreement, then each of Seller, Buyer and the Company shall make (or cause to be made) as soon as reasonably practicable and after consultation with each other, an appropriate response in compliance with the Second Request in order to obtain expiration or termination of the applicable waiting period before the Outside Date; provided that neither Buyer nor any of its Affiliates shall be obligated to: (i) offer, negotiate, commit to or effect, by consent decree, hold separate order, trust or otherwise, the sale, divestiture, license or other disposition of any capital stock, assets, rights, products or businesses of Buyer or any of its Affiliates; (ii) agree to any material restrictions on the activities of the Buyer or its Affiliates; or (iii) waive any of the conditions set forth in Article 7 of this Agreement.
(d) Each Party shall promptly notify the other Parties of any communication it or its Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and permit the other Parties to review in advance any proposed communication by it to any Governmental Entity. No Party shall agree to participate in any meeting or substantive conversation with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other Parties in advance and, to the extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend and participate at such meeting or conversation. Each Party will provide the other Parties with copies of all correspondence, filings or communications between it or any of its representatives, on the one hand, and any Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that would reasonably such material may be expected redacted as necessary to materially impair(i) comply with contractual arrangements, delay (ii) address legal privilege or prevent consummation of confidentiality concerns and (iii) comply with applicable Law.
(e) The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the Financing or the Contemplated Transactions.other under this Section 6.3 as outside “counsel
Appears in 1 contract
Samples: Stock Purchase Agreement (Amn Healthcare Services Inc)
Efforts to Consummate. (a) Subject During the Interim Period, subject to the terms and conditions herein provided, each of Parent REITParent, Parent OP, Parent Sub, Merger Sub and the Company and the Contributors shall use reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the other Party’s closing conditions set forth in Article 8 and the entry into the Tax Matters AgreementsSection 7); provided, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretohowever, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligatedthat, except as otherwise provided contemplated by this Section 6.4, nothing in Annex E or this Section 6.4(c6.4 shall include any requirement that any Party (and, without Parent’s prior written consent, no Group Company shall) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneysthe payment of nominal administrative, accountants and other advisors), offer processing or similar fees or charges) or grant any accommodation (financial or otherwise) to any third party, including any Governmental Authority, or agree or commit to do any of the foregoing. Each of Parent, Merger Sub and the Company shall use reasonable best efforts to obtain consents of all Governmental Authorities necessary to consummate the transactions contemplated by this Agreement.
(b) Subject Notwithstanding anything to the terms contrary contained herein, no Party nor any of its Affiliates shall be required (and conditions of this Agreementthe Company shall not, each and shall cause its Subsidiaries not to, agree to any of the parties hereto shall use its reasonable best efforts to following without the express written consent of Parent): (i) cooperate in all material respects with each other in connection with obtaining to offer, agree or consent to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (before or after the Closing) any consentassets, waiver licenses, operations, rights, product lines, businesses or other accommodation (including the Required Consents) from interest therein of Parent, any Person as may be necessary Group Company or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and of their respective Affiliates; (ii) keep to offer, agree or consent to any changes (including through a licensing arrangement) to or restriction on (including any access or other requirements), or other impairment of Parent’s, any Group Company’s or any of their respective Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests or Parent’s, any Group Company’s or any of their respective Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the equity securities or other party informed in all material respects and on a reasonably timely basis ownership interests of any material communication received Group Company; or (iii) to contest, defend or appeal any Claim asserted or brought by such party a Governmental Authority against any Party or any of its Affiliates fromwhich seeks to prohibit, prevent or given restrict the transactions contemplated by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPAgreement.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Merger Agreement (PAE Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein of this Agreement, each party shall use its best efforts to cause the Closing to occur and to cause the conditions set forth in ARTICLE VI to be satisfied, including (i) defending against any Proceeding challenging this Agreement or the consummation of the transactions contemplated hereby and (ii) seeking to have any preliminary injunction, temporary restraining order, stay or other legal restraint or prohibition entered or imposed by any court or other Governmental Authority that is not yet final and non-appealable vacated or reversed; provided, however, that (A) no party shall be required to waive any of the conditions set forth in ARTICLE VI and (B) no member of the Company Group shall be required to make any monetary expenditure, commence or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any third Person.
(b) In furtherance and not in limitation of the foregoing, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Purchaser shall use reasonable their best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable necessary under applicable Law Laws to consummate and make effective the transactions contemplated by this Agreement, and to comply as promptly as practicable with all legal requirements which may be imposed on it with respect to this Agreement and the Contemplated Transactions transactions contemplated hereby by any Governmental Authority with regulatory jurisdiction over enforcement of any applicable Laws (includingwhich actions shall include furnishing all information required by applicable Law in connection with approvals of or filings with any Governmental Authority), without limitationincluding the following:
(i) filing, the satisfactionor causing to be filed, as promptly as practicable, but not waiverin no event later than five Business Days following the execution and delivery of this Agreement, any required notification and report forms under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the closing conditions set forth United States Department of Justice;
(ii) providing for review and approval, as promptly as practicable, but in Article 8 no event later than five Business Days following the execution and the entry into the Tax Matters Agreementsdelivery of this Agreement, together all necessary applications and filings in connection with the Member Guarantees Required Actions, each of which shall contain complete information and Capital Contribution Agreements that are exhibits thereto, all materials required by the applicable Governmental Authority; providing all comments on the applications and filings required in connection with the New Company Agreement). Notwithstanding Required Actions within five Business Days after receiving such applications and filings; and promptly filing such applications and filings with the foregoing or anything in this Agreement to the contrary appropriate Governmental Authority after making such changes required by such comments within three Business Days after receiving such comments;
(including the preceding sentence of this Section 6.4(aiii) and Section 9.1(f)), in exercising such reasonable efforts to obtain obtaining any consent, waiver authorization, order or other accommodation (including approval of, or any exemption by, any Governmental Authority required to be obtained or made by the Required Consents) from any Person that is not a Governmental EntityCompany, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Purchaser or any of their respective AffiliatesAffiliates in connection with the transactions contemplated by this Agreement;
(iv) securing clearance under all applicable Antitrust Laws (including the expiration or termination of any applicable waiting period under the HSR Act); provided, further, that Purchaser shall be obligatedtake all actions necessary to ensure that no Governmental Authority (A) with the authority to clear, except as authorize or otherwise provided in Annex E approve the consummation of the transactions contemplated by this Agreement fails to do so or Section 6.4(c(B) enters any decision, order, decree, ruling or Section 6.5injunction restraining, enjoining or prohibiting the consummation of the transactions contemplated by this Agreement, including agreeing to any structural or conduct relief with respect to the assets of Purchaser or any of its Affiliates or of the Company Group (including, with respect to clauses (A) and (B), executing and consummating agreements, and submitting to judicial or administrative orders, to incur hold separate and divest any liabilitysuch assets), or at the request of Stockholders’ Representative, litigating any such matter; provided, however, that nothing in this Section 4.2(b) shall require any member of the Company Group to make any monetary expenditure, commence or threaten to commence participate in any litigation, agree to any amendment to this Agreement Proceeding or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingthird Person.
(bc) Subject Each of the Company and Purchaser shall furnish to the terms other such necessary information and conditions reasonable assistance as the other may request in connection with its preparation of this Agreementany filing or submission that is necessary under the HSR Act, the Required Actions, or any other Laws. The Company and Purchaser shall keep each other apprised of the parties hereto status of any communications with, and any inquiries or requests for additional information from, the Federal Trade Commission, the Antitrust Division of the United States Department of Justice and other Governmental Authorities (to the extent permitted by applicable Law), and shall comply as promptly as practicable with any such inquiry or request. Each of the Company and Purchaser agrees to instruct its respective counsel to cooperate with each other and use its reasonable their respective best efforts to facilitate and expedite the identification and resolution of any issues arising under the HSR Act, the Required Actions and any other applicable Laws at the earliest practicable dates. Said best efforts and cooperation shall include counsel’s undertaking (to the extent permitted by applicable Law and in each case regarding the transactions contemplated by this Agreement and without waiving attorney-client, work-product or any other applicable privilege) to (i) cooperate in all material respects with furnish to each other’s counsel such reasonably necessary information and reasonable assistance as the other may request in connection with obtaining its preparation of any consentfiling or submission that is necessary under the HSR Act, waiver or other accommodation (including the Required Consents) from Actions and any Person as may be necessary or desirable to obtain any consentother applicable Laws, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep cooperate in the other party informed in all material respects and on a reasonably timely basis filing of any material communication received by such party substantive memoranda, white papers, filings, correspondence or any of its Affiliates from, other written or given by such party oral communications explaining or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to defending this Transaction Agreement or any of the parties hereto that is transactions contemplated hereby, articulating any regulatory or competitive argument or responding to be provided to requests or objections made by any lender, servicer Governmental Authority or agent in connection with obtaining a Required Consent and other Person. None of the Company or Purchaser or any such materials of their respective Affiliates or Representatives shall be revised to reflect independently contact any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage Governmental Authority or participate in any meeting or discussion (or proposed discussion any other communication by any means) with any lenderGovernmental Authority in respect of any such filings, servicer applications, investigations or agent for the purpose of discussing the Contemplated Transactions or the Required Consents other inquiries without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein providedgiving, in the event any claimcase of Purchaser and its Affiliates, actionStockholders’ Representative, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions and in the validity or legality case of the Contemplated Transactions or seeks damages in connection therewithCompany and their Affiliates, each Purchaser, where practicable, prior reasonable notice of the parties hereto agrees meeting or discussion, the opportunity to cooperate confer with each other regarding appropriate contacts with and use reasonable efforts responses to defend against such claimpersonnel of said Governmental Authority, actionthe opportunity to review and comment on the contents of any communications (oral or otherwise) expected to be made at the meeting or discussion, suit, investigation or other proceeding and, if an injunction to the extent permitted by the relevant Government Authority, the opportunity to attend and participate at the meeting or other order is issued in discussion; provided, however, that neither Party shall be required to comply with the foregoing where such compliance would be contrary to applicable Law. Purchaser shall pay for all costs and expenses incurred by the Company or any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, of its Affiliates (including any Stockholder and to cooperate reasonably regarding any other impediment member of the Company Group) to comply with this Section 4.2(c), including any filing fees under the HSR Act or with respect to the consummation of the Contemplated TransactionsRequired Actions.
(d) Parent REITDuring the period from the date hereof and continuing until the earlier of the Closing and the termination of this Agreement pursuant to ARTICLE VIII in accordance with its terms, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of the RepresentativeStockholders’ Representative (which consent shall not be unreasonably withheld, enter conditioned or delayed), Purchaser and its Affiliates shall not do anything, including entering into any merger, acquisition, joint venture transaction (or debt making any antitrust or equity financingcompetition Law filing in connection with such transaction), that would could reasonably be expected to materially impairprevent or delay any filings or approvals required under the HSR Act, delay the Required Actions or prevent consummation of the Financing or the Contemplated Transactionsother applicable Laws.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each party shall use Commercially Reasonable Efforts to take or cause to be taken all actions and do or cause to be done all things required under all applicable Laws, in order to consummate the transactions contemplated hereby and by the Related Documents.
(b) From and after the date hereof until the earlier of the parties hereto Closing or the termination of this Agreement pursuant to Article XII, Purchaser, each Seller and the Trust shall use Commercially Reasonable Efforts to satisfy all of the conditions precedent to its reasonable best efforts obligations set forth in Article X hereof and to (i) cause the Closing to occur, including making any necessary filings and submissions with all applicable Governmental Entities and other Persons, and procuring written consents of all Persons necessary for the assignment to Purchaser of the Purchased Assets, including the Assigned Permits, and shall reasonably cooperate in all material respects with each other in connection with obtaining therewith; provided, however, that nothing in this Section 7.3 shall require any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party to waive any conditions precedent to its obligations pursuant to Article X or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsto amend this Agreement. Without limiting the foregoing, (A) Parent OP each of the Sellers and Parent REIT the Trust shall be given no less than three (3) Business Days execute and deliver each Related Document to review and comment on all materials which it is a party. In the event the assignment or documents relating to this Transaction or transfer of any of the parties hereto Assigned Permits (other than those Assigned Permits that are referenced on Schedule 10.1(a)) is to be provided unlawful or is not permissible under any agreement, or under any Law, such terms for the purposes of this Agreement with respect to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials Assigned Permit shall be revised deemed to reflect any reasonable comments mean and require (i) the Sellers’ relinquishment of Parent REIT all its right, title, benefit and Parent OP with respect thereto interest in and to and authority under, such Assigned Permits as of the Closing and (Bii) the Group Companies issuance or grant to Purchaser by the appropriate Governmental Entity of an Assigned Permit conferring upon Purchaser, as of the Closing, all right, title, benefit, interest and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lenderauthority at least equal to that relinquished by the Sellers, servicer or agent for as the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPcase may be.
(c) Subject In the event that any Permits required to be made or obtained prior to the terms Closing Date from any Governmental Entities are not made or obtained at such time, but all other conditions set forth in Article X are satisfied (other than (i) conditions which, by their nature, are to be satisfied on the Closing Date, and conditions herein provided(ii) Section 10.1(a)), the parties shall cooperate in good faith with each other and use Commercially Reasonable Efforts in formulating and implementing mutually acceptable alternatives (if any) that permit the consummation of the transactions contemplated by this Agreement and the Related Documents in accordance with applicable Law in the absence of such Permits.
(d) Without limiting any representation, warranty, condition or indemnification contained in this Agreement, in the event any claimthat, actionby June, suit1, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions 2005 (assuming this Agreement has not been terminated prior to such date in accordance with Article XII), the validity or legality condition to consummation of the Contemplated Transactions Closing in Section 10.1(a) shall have been satisfied or seeks damages deemed satisfied in connection therewithaccordance therewith as to at least 15 Facilities (the “Approved Facilities”), each of the parties hereto agrees shall use its Commercially Reasonable Efforts to cooperate develop and use reasonable efforts negotiate in good faith mutually acceptable modifications and amendments to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, this Agreement and to cooperate reasonably regarding the Related Documents and any other impediment appropriate arrangements to permit the consummation of the Contemplated Transactionstransactions contemplated hereby as to all of the Approved Facilities (including appropriate adjustments to the Purchase Price and the Schedules to reflect the purchase and sale of only those Purchased Assets and the assumption of only those Assumed Liabilities relating to the Approved Facilities).
(de) Parent REITNothing in this Section 7.3 shall require Purchaser to dispose of any of its Assets or to limit its freedom of action with respect to any of its businesses, Parent OP and Parent Sub shall notor to consent to any disposition of any Seller’s Assets or limits on Purchaser’s freedom of action with respect to the businesses of any Seller, or commit or agree to any of the foregoing, and nothing in this Section 7.3 shall not permit authorize the Sellers to commit or agree to any of their respective controlled Affiliates tothe foregoing in order to obtain any consents, without approvals, permits or authorizations to remove any impediments to the prior written consent transactions contemplated hereby relating to the Hxxx-Xxxxx-Xxxxxx Act or other antitrust, competition or trade regulation Law (“Antitrust Laws”) or to obtain any Operating Licenses or other Permits or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding relating to the Antitrust Laws or any Laws relating to the Operating License or any other Permits.
(f) Purchaser, on the one hand, and Sellers, on the other hand, shall promptly notify, consult with and keep the other advised as to the status of the Representativematters referred to in this Section 7.3, enter into including with respect to any mergermaterial communication from the Federal Trade Commission, acquisition, joint venture the United States Department of Justice or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation any other Governmental Entity regarding any of the Financing or the Contemplated Transactionstransactions contemplated hereby.
Appears in 1 contract
Samples: Facilities Purchase and Sale Agreement (Sunrise Senior Living Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a7) and Section 9.1(f))and, in exercising the case of any Ancillary Document to which such reasonable efforts to obtain any consent, waiver or other accommodation (including Party will be a party after the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement. Without limiting the generality of the foregoing, each of the parties hereto Parties shall use its commercially reasonable best efforts to (i) cooperate in all material respects obtain, file with each other or deliver to, as applicable, any Consents of any Governmental Entities necessary, proper or advisable to consummate the Transactions, including preparing and submitting any required notices related to any registrations obtained by any Company Group Member from any Governmental Entity and preparing and submitting any requests to amend or novate any Permits that may be necessary as a consequence of the Transactions. Each Party shall bear its out-of-pocket costs and expenses in connection with the preparation and obtaining of any consentsuch Consents. Acquiror shall promptly inform the Company of any communication between any Acquiror Party, waiver or other accommodation (including on the Required Consents) from one hand, and any Person as may be necessary or desirable to obtain any consentGovernmental Entity, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep on the other party informed in all material respects hand, and on a reasonably timely basis the Company shall promptly inform Acquiror of any material communication received by such party or between the Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsTransactions. Without limiting the foregoing, each Party and their respective Affiliates shall not enter into any agreement with any Governmental Entity not to consummate the Transactions, except with the prior written consent of Acquiror and the Company. Nothing in this Section 6.2 obligates any Party or any of its Affiliates to agree to (A1) Parent OP sell, license or otherwise dispose of, or hold separate and Parent REIT shall be given no less than three agree to sell, license or otherwise dispose of, any entities, assets or facilities, (2) terminate, amend or assign existing relationships and contractual rights or obligations, (3) Business Days amend, assign or terminate existing licenses or other agreements, or (4) enter into new licenses or other agreements. No Party shall agree to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided foregoing measures with respect to any lenderother Party, servicer except with Xxxxxxxx’s and the Company’s prior written consent.
(b) From and after the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Acquiror Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of any Acquiror Party) or agent Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the Transactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with obtaining a Required Consent and the Transactions unless it consults with, in the case of any such materials shall be revised to reflect any reasonable comments Acquiror Party, the Company, or, in the case of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate Company, Acquiror in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPadvance.
(c) Subject Notwithstanding anything to the terms and conditions herein providedcontrary in the Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding that this Section 6.2 conflicts with any other impediment covenant or agreement in this Article 6 that is intended to specifically address certain subject matter, then such other covenant or agreement shall govern and control solely to the consummation extent of the Contemplated Transactionssuch conflict.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Merger Agreement (Akerna Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, and the Company and the Contributors shall will use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective as promptly as practicable after the Contemplated Transactions Agreement Date the Transactions, including (includingi) preparing and filing with applicable Governmental Entities as promptly as reasonably practicable all necessary applications, without limitationnotices, the satisfactiondisclosures, but not waiverpetitions, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreementsfilings, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoruling requests, and the New Company Agreement). Notwithstanding the foregoing other documents pursuant to any Antitrust Laws and to obtain as promptly as practicable any consents, clearances, approvals, waivers, actions, waiting period expirations or anything in this Agreement to the contrary terminations, non-actions or other authorizations from Governmental Entities (including the preceding sentence of this Section 6.4(a“Antitrust Approvals”) and Section 9.1(f))all Permits necessary, in exercising such reasonable efforts (ii) taking all steps as may be necessary to obtain all such Permits and Antitrust Approvals as promptly as reasonably practicable, and (iii) obtaining any consentwaivers, waiver or other accommodation (including the Required Consents) qualifications, consents, certificates, clearances, and approvals required from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment third parties (other than to attorneys, accountants Permits and other advisors), offer or grant any accommodation (financial or otherwiseAntitrust Approvals) or agree or commit to any in connection with the consummation of the foregoingTransactions.
(b) Subject to In connection with the terms and conditions of this Agreementactions referenced in Section 6.03(a), each of Parent and the parties hereto shall use its reasonable best efforts to Company will, and will cause their respective controlled Affiliates to, (i) cooperate in all material respects with each other in connection with obtaining any consentcommunication, waiver filing or submission and in connection with any investigation or other accommodation (inquiry, including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and Action initiated by a private party; (ii) keep the other party Party and/or its counsel promptly informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates Party from, or given by such party or any of its Affiliates Party to, any lender, servicer Governmental Entity or agent Government Official and of any communication received or given in connection with obtaining any Action by a private party, in each case, regarding any of the Required Consents. Without limiting Transactions; (iii) consult with each other in advance of any meeting or conference regarding the foregoingTransactions with such Governmental Entity or Government Official or, in connection with any Action by a private party, with any other Person, and to the extent permitted by the applicable Governmental Entity, Government Official, or other Person, give the other Party and/or its counsel the opportunity to attend and participate in such meetings and conferences; (iv) consider in good faith the views of the other Party and keep the other Party reasonably informed of the status of matters related to the Transactions; and (v) permit the other Party and/or its counsel to review in advance, with reasonable time and opportunity to comment, give reasonable consideration to the other Party’s comments thereon, and consult with each other in advance of any proposed submission, filing or communication (and documents submitted therewith) intended to be given by it to a Governmental Entity or Government Official in connection with the Transactions; provided that materials may be redacted (x) as necessary to comply with applicable Law, (y) for legal privilege and (z) to remove references concerning (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any the valuation of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent businesses of the Company and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto the Company Subsidiaries and (B) projections, estimates, budgets, forecasts, plans or other information of the Group Companies Company and their representatives shall not engage or participate the Company Subsidiaries and other materials that the Special Committee evaluated in any meeting or discussion or proposed discussion connection with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPTransactions.
(c) Subject The Company will give prompt written notice to Parent, and Parent will give prompt written notice to the terms and conditions herein providedCompany, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the event failure to satisfy or be able to satisfy any claimof the conditions specified in Article VII, actionand such written notice will specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the Transactions to the extent such consent is material to the Company and the Company Subsidiaries, suit, investigation or other proceeding by taken as a whole; (iii) any material written notice from any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewithwith the Transactions; and (iv) any shareholder Action against the Company, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation any Company Subsidiary and/or their respective directors or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment officers relating to the consummation Transactions; provided that the delivery of any notice pursuant to this Section 6.03(c) will not limit or otherwise affect the Contemplated Transactionsremedies available hereunder to Parent or the Company.
(d) Parent REITWithout limiting anything in this Section 6.03, Parent OP and Parent Xxxxxx Sub shall notagree to take promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Entity to avoid or eliminate each and every impediment and obtain all Permits and Antitrust Approvals under any applicable Laws that may be required by any Governmental Entity so as to enable the Parties to consummate the Transactions, including the Merger, as expeditiously as possible, including committing to and shall not permit effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company or its Subsidiaries, (B) terminating, amending or assigning existing relationships and contractual rights and obligations of the Company and/or its Subsidiaries, (C) requiring the Company or any of its Subsidiaries to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any third party and (D) imposing limitations on the Company or its Subsidiaries with respect to how they own, retain, conduct or operate all or any portion of their respective controlled businesses or assets; provided that: (i) Parent, Merger Sub and its Affiliates toshall not be obligated to take the foregoing actions contemplated by this sentence with respect to Parent, without Merger Sub, or their respective Affiliates (other than the prior written consent Company and its Subsidiaries after the Closing), or their respective assets, categories of the Representativeassets, enter into businesses, relationships, contractual rights, obligations or arrangements, and any merger, acquisition, joint Intellectual Property rights thereto or embodied therein or any venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent other arrangement and (ii) any such action is conditioned upon the consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement:
(a) Subject to the terms and conditions herein provided, Seller and Buyer agree, and shall cause each of Parent REITtheir respective Affiliates, Parent OP, Parent Sub, the Company and the Contributors shall to use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 ARTICLE VI and obtaining consents of all Governmental Authorities and any third parties necessary to consummate the entry into Transactions), including as may be required by ARIN (the Tax Matters AgreementsAmerican Registry of Internet Numbers).
(b) In furtherance of the foregoing, together with the Member Guarantees Seller and Capital Contribution Agreements that are exhibits theretoBuyer shall, and shall cause each of their respective Affiliates to, (i) to the New Company Agreement). Notwithstanding extent necessary, make any appropriate filing as soon as practicable after the foregoing or anything in date of this Agreement to obtain Approvals from other Governmental Authorities with respect to the contrary Transactions, and (including ii) supply as promptly as practicable to the preceding sentence appropriate Governmental Authorities any additional information, responses and documentary material that may be requested related to the appropriate filings. Buyer, on the one hand, and Seller, on the other hand, shall each provide counsel for the other Party advance drafts of this Section 6.4(a(and final copies of) any proposed written communication to any Governmental Authority relating to the Transactions for such other Party’s review, comment and consent (which shall not be unreasonably withheld, delayed or conditioned) and Section 9.1(f))shall make any changes to such communications as such other Party reasonably requests. Neither Buyer nor Seller, in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or nor any of their respective Affiliates, shall be obligatedparticipate in any substantive meeting or discussion, except as otherwise provided either in Annex E person or Section 6.4(c) or Section 6.5by telephone with any Governmental Authority in connection with the Transactions unless it consults with the other Party in advance and, to incur the extent not prohibited by such Governmental Authority, gives such other Party a reasonable opportunity to attend and participate in such meeting or discussion. Buyer, on the one hand, and Seller, on the other hand, will provide the other Party with copies of all correspondence that Buyer or Seller or their respective Affiliates receive from any liability, commence or threaten to commence any litigation, agree to any amendment Governmental Authority with respect to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this AgreementTransactions. However, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining Seller and Buyer may designate any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be non-public information provided to any lender, servicer or agent in connection with obtaining a Required Consent Governmental Authority as restricted to “outside counsel” only and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives information shall not engage be shared with employees, officers or participate directors or their equivalents of the other Party without approval of the Party providing the non-public information; provided, however, that each of Buyer and Seller may redact any valuation and related information before sharing any information provided to any Governmental Authority with another Party on an “outside counsel” only basis, and that Buyer and Seller shall not in any meeting or discussion or proposed discussion event be required to share information that benefits from legal privilege with any lenderthe other Parties, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all even on an “outside counsel” only basis, where this would cause such meetings and discussions will be scheduled information to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPcease to benefit from legal privilege.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding All Governmental Filing Fees shall be paid by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated TransactionsBuyex.
(d) Parent REITExcept as specifically required by this Agreement, Parent OP and Parent Sub Buyer shall not, and shall not permit any of their respective controlled its Affiliates to, without take any action or refrain from taking any action the prior written consent effect of which would be to delay or impede the ability of Buyer and Seller to consummate the Transactions. Without limiting the generality of the Representativeforegoing, enter Buyer shall not, and shall cause its Affiliates not to, directly or indirectly acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into any mergera definitive agreement relating to, or the consummation of, such acquisition, joint venture merger or debt or equity financing, that consolidation would reasonably be expected to (i) impose any material delay in obtaining, or increase the risk of not obtaining, any permits, orders or other approvals of any Governmental Authority necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Transactions, (iii) increase the risk of not being able to remove any such order on appeal or otherwise, or (iv) materially impair, delay or prevent the consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to Each of the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors parties shall use their respective reasonable best efforts to prepare all documentation, to effect all applications, notices and filings and to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper proper, or advisable under applicable Law to consummate the transactions contemplated hereby as soon as practicable, including obtaining all Consents from any Governmental Authority necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions contemplated by this Agreement (including the Requisite Regulatory Approvals). Without limiting the generality of the foregoing, as soon as practicable, Purchaser and Seller and their respective Affiliates shall make effective all necessary filings in respect of the Requisite Regulatory Approvals as promptly as practicable after the Contemplated Transactions date of this Agreement, and shall make all other necessary filings as promptly as practicable after the date of this Agreement. The parties shall coordinate and cooperate with one another in exchanging and providing such information as necessary to carry out the foregoing (includingother than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information filed under a claim of confidentiality). After the date of this Agreement and prior to the Closing, each party shall, subject to applicable Laws relating to the exchange of information (a) have the right to review in advance, and to the extent practicable consult with the other prior to sending any material notices to, making any material filings with, or having any material communications with any Person with respect to the transactions contemplated by this Agreement, (b) promptly consult with the other parties with respect to all material notices sent, all material confidential filings made or any other material confidential information supplied by such party to a Person in connection with this Agreement and the transactions described herein, and (c) promptly inform the other parties of any material communication from any Person regarding any of the transactions contemplated herein, including advising the other parties upon receiving any material communication from a Governmental Authority, the Consent of which is required for the consummation of the transactions contemplated by this Agreement, that causes such party to believe that there is a reasonable likelihood that any Requisite Regulatory Approval will not be obtained or may be materially delayed (a “Regulatory Communication”). Upon the receipt of a Regulatory Communication, without limitationlimiting the scope of the foregoing paragraphs, the satisfactionreceiving party shall, but not waiver, to the extent permitted by applicable Law (i) promptly advise the other parties of the closing conditions set forth receipt of such Regulatory Communication and provide a copy of such Regulatory Communication to the other parties, (ii) provide the other parties with a reasonable opportunity to participate in Article 8 the preparation of any response thereto and the entry into preparation of any other substantive submission or communication to any Governmental Authority with respect to the Tax Matters Agreementstransactions contemplated hereby and to review any such response, together submission or communication prior to the filing or submission thereof (other than portions of materials to be filed or submitted in connection therewith that contain competitively sensitive business or proprietary information filed or submitted under a claim of confidentiality), and (iii) provide the other parties with the Member Guarantees and Capital Contribution Agreements opportunity to participate in any meetings or substantive telephone conversations that are exhibits thereto, and the New Company receiving party or its Representatives may have from time to time with any Governmental Authority with respect to the transactions contemplated by this Agreement). Notwithstanding anything to the foregoing or anything contrary in this Agreement, nothing contained in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))shall require Purchaser, in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group CompaniesSeller, the Contributors, Parent REIT, Parent OP, Parent Sub, Bank or any of their respective AffiliatesAffiliates to take, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to take, any amendment to this Agreement actions that Purchaser determines in good faith would be expected to, individually or any other Transaction Documentin the aggregate (A) have a Material Adverse Effect on Purchaser or the Bank following Closing, make any payment (other than to attorneysB) require the ownership, accountants and other advisors)capitalization, offer governance or grant any accommodation (financial or otherwise) or agree or commit to any operations of the foregoing.
(b) Subject Bank following Closing to deviate in any material respect from the terms and conditions of ownership, capitalization, governance or operations contemplated by this Agreement, or (C) result in materially burdensome regulatory conditions being imposed on the Bank or Purchaser or their respective Affiliates that could materially reduce the benefits of the transactions contemplated by this Agreement to such a degree that Purchaser would not have entered into this Agreement had such conditions, restrictions or requirements been known or enacted as of the date hereof (each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, clauses (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender), servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender(C) being a “Materially Burdensome Regulatory Condition”) and, servicer or agent for the purpose avoidance of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled doubt, any requirements to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provideddisclose any competitively sensitive business, in the event any claim, action, suit, investigation or other proceeding proprietary information, or publicly disclose sensitive personal financial or biographical information of Purchaser or its Affiliates shall be deemed a “Materially Burdensome Regulatory Condition” unless otherwise determined by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages Purchaser in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionsits sole discretion.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Simmons First National Corp)
Efforts to Consummate. Each of the Parties shall (aand shall cause its respective Affiliates to) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use all commercially reasonable efforts to take, or cause to be taken, all lawful and reasonable actions within its control and to do, or cause to be done, all lawful and reasonable things reasonably necessary, proper or advisable under applicable Law within its control necessary to fulfill the conditions precedent to the obligations of such Party hereunder and to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in transactions contemplated by this Agreement and to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsforegoing. Without limiting the generality of the foregoing, (Aa) Parent OP each Party will cooperate and Parent REIT use all commercially reasonable efforts to take, or cause to be taken, all appropriate actions and to make, or cause to be made, all filings necessary, proper or advisable under any Antitrust Law and all other applicable Laws to consummate and make effective the transactions contemplated by this Agreement, including their respective commercially reasonable efforts to obtain, prior to the Closing, all Business Permits and Orders of Governmental Authorities as are required for the consummation of the transactions contemplated by this Agreement; (b) each Party will defend against any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the performance of the obligations under this Agreement; and (c) Buyer or its Affiliates will sell or divest of any asset or business set forth on Schedule 5.2 as required for the consummation of the transactions contemplated by this Agreement. Without limiting the generality of the first sentence of this Section 5.2, Seller shall use commercially reasonable efforts to obtain all Seller Approvals and Buyer shall use commercially reasonable efforts to cooperate with Seller in respect of obtaining the same. Nothing in this Agreement shall be given no less than three (3) Business Days to review and comment on all materials construed as an attempt or documents relating to this Transaction an agreement by Seller or any of the Elk City Entities to assign or cause the assignment of any contract or agreement which is described on Schedule 3.5(b) and non-assignable without the consent of the other party or parties hereto that is thereto, unless such consent shall have been given. In no event shall “commercially reasonable efforts” as used in this Agreement be deemed to be provided require (x) the payment of any cash or other consideration by any Party to this Agreement to any lenderthird party or Governmental Authority, servicer other than filing fees and related expenses or agent (y) Buyer or its Affiliates to sell or divest of any asset or business (other than as set forth in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
clause (c) Subject of this Section 5.2 or otherwise agreed in writing by Seller and Buyer); terminate existing relationships, contractual rights or obligations or terminate any venture or other arrangement; create any relationship, contractual right or obligation; effectuate any other change or restructuring; or agree to any of the foregoing with respect to the terms and conditions herein provided, in the event any claim, action, suit, investigation Assets or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated TransactionsElk City Business.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Securities Purchase Agreement (Atlas Pipeline Partners Lp)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and delivery such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to obtain the entry into PIPE Financing on the Tax Matters Agreementsterms and subject to the conditions set forth in the Subscription Agreements and (iii) the Company taking, together or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Schedule 5.2(a) to be terminated effective as of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including the other Group Companies and, from and after the Effective Time, CHFW)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the Member Guarantees transactions contemplated by this Agreement or the Ancillary Documents.
(b) From and Capital Contribution Agreements that are exhibits theretoafter the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, CHFW, on the one hand, and the New Company Agreement). Notwithstanding Company, on the foregoing other hand, shall each notify the other in writing promptly after learning of any shareholder demands or anything in this Agreement to the contrary other shareholder Proceedings (including derivative claims) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the preceding sentence of this Section 6.4(a“Transaction Litigation”) and Section 9.1(f))commenced against, in exercising such reasonable efforts to obtain the case of CHFW, any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, CHFW Parties or any of their respective AffiliatesRepresentatives (in their capacity as a representative of a CHFW Party) or, shall be obligatedin the case of the Company, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement Group Company or any other Transaction Document, make any payment of their respective Representatives (other than to attorneys, accountants in their capacity as a representative of a CHFW Party). CHFW and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, Company shall each of the parties hereto shall use its reasonable best efforts to (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate in all material respects with each the other in connection with obtaining the defense, settlement and compromise of any consentsuch Transaction Litigation, waiver or other accommodation (including iii) consider in good faith the Required Consents) from other’s advice with respect to any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions such Transaction Litigation and (iiiv) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection cooperate with obtaining the Required Consentseach other. Without limiting Notwithstanding the foregoing, (A) Parent OP the Company shall, subject to and Parent REIT shall be given no less than three (3) Business Days to review without limiting the covenants and comment on all materials or documents relating to this Transaction or any agreements, and the rights of CHFW, set forth in the parties hereto that is to be provided to any lenderimmediately preceding sentence, servicer or agent in connection with obtaining a Required Consent control the negotiation, defense and settlement of any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein Transaction Litigation; provided, however, that in no event shall the event any claimCompany, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit Group Company or any of their respective controlled Affiliates to, Representatives settle or compromise any Transaction Litigation without the prior written consent of CHFW (not to be unreasonably withheld, conditioned or delayed, provided that it shall be deemed to be reasonable for CHFW to withhold, condition or delay its consent if any such settlement or compromise (A) does not provide for a legally binding, full, unconditional and irrevocable release of each CHFW Party and Representative that is the Representativesubject of such Transaction Litigation, enter into (B) provides for (x) the payment of cash any mergerportion of which is payable by any CHFW Party or Representative thereof or would otherwise constitute a CHFW Liability or (y) any non-monetary, acquisitioninjunctive, joint venture equitable or debt similar relief against any CHFW Party or equity financing, that would reasonably be expected to materially impair, delay (C) contains an admission of wrongdoing or prevent consummation Liability by a CHFW Party or any of its Representatives). Without limiting the generality of the Financing foregoing, in no event shall CHFW, any of the CHFW Parties or any of their respective Representatives settle or compromise any Transaction Litigation without the Contemplated TransactionsCompany’s prior written consent.
Appears in 1 contract
Samples: Business Combination Agreement (Consonance-HFW Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITParent, Parent OP, Parent Sub, Merger Sub and the Company and the Contributors shall use reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 6). Each of Parent, Merger Sub and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in obtain consents of all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be Governmental Entities necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions transactions contemplated by this Agreement. Each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event, within seven (ii7) keep Business Days) after the other party informed in all date of this Agreement and shall supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining that may be requested pursuant to the Required ConsentsHSR Act. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (Bi) the Group Companies Company, Parent and their representatives respective Affiliates shall not engage extend any waiting period or participate in comparable period under the HSR Act or enter into any meeting or discussion or proposed discussion agreement with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions not to consummate the validity or legality of the Contemplated Transactions or seeks damages in connection therewithtransactions contemplated hereby, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of the Representativeother parties hereto, enter into and (ii) Parent and Merger Sub agree to take all actions that are necessary or reasonably advisable or as may be required by any mergerGovernmental Entity to expeditiously consummate the transactions contemplated by this Agreement, acquisitionincluding (A) selling, joint venture licensing or debt otherwise disposing of, or equity financingholding separate and agreeing to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company after the Closing or any entity, facility or asset of Parent or its Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations (other than terminations that would reasonably result in a breach of a contractual obligation to a third party) and (C) amending, assigning or terminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements. All HSR Act filing fees shall be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsborne by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Logan's Roadhouse of Kansas, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedof this Agreement, each of Parent REIT, Parent OP, Parent SubPurchaser, the Company (and the Contributors Company shall cause the other Transferred Entities to) and Sellers shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate the Sale and the other transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) the taking of all acts reasonably necessary to cause the conditions precedent set forth in Article VI to be satisfied; (ii) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders, expiration of applicable waiting periods and authorizations from Governmental Entities and third parties and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Entity; (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the Sale and the other transactions contemplated hereby, including seeking to have any stay or temporary restraining order, decree, injunction or other agreement entered by any court or other Governmental Entity vacated or reversed; and (iv) the execution and delivery of additional instruments necessary to consummate the Sale and the other transactions contemplated hereby, and to fully carry out the purposes of, this Agreement. In furtherance and not in limitation of the foregoing, each of Purchaser and Sellers shall (A) make effective or cause to be made the filings, registrations, notices, and declarations required of such Party under the HSR Act and any other Antitrust Laws with respect to the transactions contemplated by this Agreement as promptly as practicable after the Contemplated Transactions date of this Agreement (and, in the case of any filings required under the HSR Act, in no event later than fifteen (15) days from the execution of this Agreement, unless otherwise agreed to by Purchaser and Sellers); (B) respond to, and comply with, at the earliest practicable date, any inquiries received from any Governmental Entity for additional information and documentary materials received by such Party from the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “DOJ”), or by any other Governmental Entity (including under any Antitrust Laws), in respect of such filings or such transactions and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity not to consummate the transactions contemplated in this Agreement, except with the prior written consent of the other Parties hereto; and (C) act in good faith and reasonably cooperate with the other Parties in connection with any such filings (including, without limitationif requested by any other Party, to accept all reasonable additions, deletions or changes suggested by such other Party in connection therewith) and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the satisfactionXxxxxxx Antitrust Act of 1890, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoas amended, and the New Company rules and regulations promulgated thereunder, the Xxxxxxx Act of 1914, as amended, and the rules and regulations promulgated thereunder, and any other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such transaction.
(b) In connection with and without limiting the generality of the foregoing, each of Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement). Notwithstanding the foregoing In connection therewith, if any Action is instituted (or anything in threatened to be instituted) challenging any transaction contemplated by this Agreement as inconsistent with or violative of any Law, each of Purchaser and Sellers shall cooperate with each other with respect to such objection and use its reasonable best efforts to vigorously contest and resist (by negotiation, litigation or otherwise) any Action related thereto, including any administrative or judicial action, and to have vacated, lifted, reversed or overturned any order, decree, injunction or other agreement whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Sale or the other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal.
(c) In furtherance and not in limitation of the foregoing, Purchaser and where applicable, Sellers shall (i) furnish to the other Parties as promptly as reasonably practicable all information required for any application or other filing to be made by any other Party pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (ii) promptly inform the other Parties of any substantive written or oral communications with, and inquiries or requests for information from, any Governmental Entity in connection with the transactions contemplated herein; (iii) consult with the other Parties in advance of any substantive meeting or conference, whether in-person or by telephone, with any Governmental Entity or, in connection with any proceeding by a private party under any Antitrust Law or other regulatory Law, with such private party, and to the extent not prohibited by such Governmental Entity or such private party, give the other Parties the opportunity to attend and participate in such meeting, telephone call or discussion; (iv) furnish the other Parties promptly with copies of all correspondence, filings and communications relating to any Antitrust Law or any Action pursuant to any Antitrust Law between them and their Affiliates and their respective representatives on the one hand, and the FTC, the DOJ or any other Governmental Entity or members of their respective staffs on the other hand, with respect to the transactions contemplated herein; provided, however, that materials provided to the other Parties may be redacted (A) to remove references to valuation, (B) as necessary to comply with existing contractual arrangements with respect to confidentiality, and (C) as necessary to address reasonable attorney-client or other privilege concerns; and (v) act in good faith and reasonably cooperate with the other Parties in connection with any such registrations, declarations and filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under the HSR Act or any other Antitrust Law with respect to any such registration, declaration and filing or any such transaction. Purchaser and Sellers may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.2 as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers,
(d) In furtherance and not in limitation of the foregoing, if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, Purchaser shall take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as any Governmental Entity may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated hereby so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any businesses, product lines, assets or capital stock or other interests of Purchaser or the Transferred Entities, and (ii) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Purchaser or its Subsidiaries’ (including the Transferred Entities) freedom of action with respect to, or its ability to retain, one or more of their or their Subsidiaries’ businesses, product lines, assets or capital stock or other interests, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding that would otherwise have the effect of preventing the Closing or delaying the Closing beyond the Outside Date; provided that (i) neither Purchaser nor the Transferred Entities shall be obligated to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Transferred Entities, unless such requirement, condition, understanding, agreement or order is binding only in the event that the Closing occurs, and (ii) Purchaser shall not be required to agree to any amendment to, or waiver under, this Agreement in connection with obtaining any requisite consent or expiration of an applicable waiting period under the HSR Act or other applicable Antitrust Law.
(e) Notwithstanding anything to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver herein or other accommodation (including the Required Consents) from any Person that is not a Governmental Entityotherwise, none of the Group CompaniesSellers, the ContributorsTransferred Entities or their respective Representatives or Affiliates shall (i) propose, Parent REITnegotiate, Parent OPoffer or commit to making or effecting any divestitures, Parent Subdispositions, or licenses of any assets, properties, products, rights, services or businesses of Purchaser, Apollo Global Management LLC, any of its affiliated investment funds or portfolio companies, any Transferred Entity or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c(ii) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment other remedy, requirement, obligation, condition or restriction related to this Agreement the conduct of Purchaser’s, Apollo Global Management LLC’s, any of its affiliated investment funds’ or portfolio companies’, any Transferred Entity’s or any other Transaction Documentof their respective Affiliates’ businesses, make in each case in order to resolve any payment (other than Governmental Entity’s objections to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of concerns about the foregoingtransactions contemplated by this Agreement.
(bf) Subject to the terms and conditions of Without limiting any other obligation under this Agreement, each during the period from the date of this Agreement until the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewithClosing Date, each of the parties hereto agrees to cooperate Purchaser and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub Sellers shall not, and shall cause its Subsidiaries and Affiliates not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into take or agree to take any merger, acquisition, joint venture or debt or equity financing, action that would reasonably be expected to materially impairprevent or delay the Parties from obtaining any governmental approval in connection with the transactions contemplated by this Agreement.
(g) Purchaser agrees to provide such security and assurances as to financial capability, delay resources and creditworthiness as may be reasonably requested by any Governmental Entity whose consent or prevent consummation approval is sought in connection with the transactions contemplated hereby. Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees and payments to any Governmental Entity in order to obtain any consents, approvals or waivers pursuant to this Section 5.2.
(h) Without limiting Purchaser’s obligations pursuant to this Section 5.2, (i) Purchaser shall determine strategy and timing, lead all proceedings and coordinate all activities with respect to seeking any actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers of any Governmental Entity as contemplated hereby, and (ii) the Financing Company shall, and shall cause each of its Subsidiaries to, to take such actions as reasonably requested by Purchaser in connection with obtaining any such actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers, so long as any such action is binding only in the Contemplated Transactionsevent that the Closing occurs.
Appears in 1 contract
Efforts to Consummate. (a) Subject With respect to the terms and conditions herein providedany requests, inquiries, Actions or other proceedings by or from Governmental Authorities, each of Parent REITthe Company, Parent OPListCo and Merger Sub shall (i) diligently and expeditiously defend and use commercially reasonable efforts to obtain any necessary clearance, Parent Subapproval, consent under any applicable Laws prescribed or enforceable by any Governmental Authority for the Transactions and to resolve any objections as may be asserted by any Governmental Authority with respect to the Transactions; and (ii) cooperate fully with each other in the defense of such matters. To the extent not prohibited by Law, the Company shall promptly furnish to ListCo, and ListCo and Merger Sub shall promptly furnish to the Company, copies of any notices or communications received by such Party or any of its Affiliates from any Governmental Authority with respect to the Transactions, and each such Party shall permit counsel to the other parties an opportunity to review in advance, and each such Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party or its Affiliates to any Governmental Authority concerning the Transactions. To the extent not prohibited by Law, the Company agrees to provide ListCo and its counsel, and XxxxXx agrees to provide to the Company and its counsel, the opportunity, to the extent practical, on reasonable advance notice, to participate in any material substantive meetings or discussions, either in person or by telephone, between such Party or any of its Affiliates or Representatives, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions.
(b) During the Interim Period, ListCo, on the one hand, and the Contributors Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of ListCo, any Subsidiary of ListCo or any of their respective Representatives (in their capacity as a representative of ListCo or any Subsidiary of ListCo) or, in the case of the Company, any Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). ListCo and the Company shall each (i) keep the other Party timely informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at such other Party’s own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, and (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation. Notwithstanding the foregoing, in no event shall ListCo (or any of its Representatives) on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed).
(c) Each Party shall otherwise use its reasonable best efforts to cooperate with the other Parties to take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws or otherwise to satisfy the conditions to closing set forth in Article IX and to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Merger Agreement (Aptorum Group LTD)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedset fort in this Agreement, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions contemplated by this Agreement (includingincluding (i) preparation and agreement upon the form of each of (A) the Registration Statement (as defined below), without limitation(B) the Pubco Certificate of Incorporation, (C) the satisfactionPubco Bylaws, but not waiver(D) the Lockup Agreement, (E) the A&R Registration Rights Agreement, (F) the Reorganization Certificate of Merger, (G) the Acquisition Certificate of Merger and (H) the Incentive Equity Plan, (ii) the satisfaction of the closing conditions set forth in Article 8 ARTICLE VIII and (iii) consummating the entry into the Tax Matters Agreements, together PIPE Investment in accordance with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company AgreementSection 7.07). Notwithstanding Without limiting the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any generality of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto Parties shall use its reasonable best efforts to to: (iy) cooperate in all material respects with each other in connection with obtaining obtain any consentConsents from, waiver or file any notices to, any Governmental Authorities or other accommodation Persons necessary to change the name of the authorized permittee of any Permits held by the Company to the name of the Surviving Acquisition Corporation, as necessary for the continued lawful conduct of the business of the Company after Closing, and (z) obtain, file with or deliver to, as applicable, any Consents of, or notices to, any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (I) make any appropriate filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within ten (10) Business Days) following the date of this Agreement (II) submit notifications (including draft notifications, as applicable), filings, notices and other required submissions pursuant to the Competition Laws or Investment Screening Laws of the other jurisdictions set forth on Schedule 7.01(a) with respect to the transactions contemplated by this Agreement as promptly as practicable following the date of this Agreement (and any filing fees associated with any such filings shall be paid by the Company) and (III) respond as promptly as reasonably practicable to any requests by any Governmental Authority (including any Competition Authorities) for additional information and documentary material that may be requested pursuant to any Competition Laws (including the Required ConsentsHSR Act) from or Investment Screening Laws. Acquiror shall promptly inform the Company of any Person as may be necessary or desirable to obtain communication between any consentAcquiror Party, waivers or approvals required to consummate on the Contemplated Transactions one hand, and any Governmental Authority (ii) keep including any Competition Authorities), on the other party informed in all material respects hand, and on a reasonably timely basis the Company shall promptly inform Acquiror of any material communication received by such party between the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsTransaction Agreement. Without limiting the foregoing, each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or any other Competition Laws or Investment Screening Laws or enter into any agreement with any Governmental Authority not to consummate the Transactions or by the other Transaction Agreements, except with the prior written consent of Acquiror and the Company.
(Ab) Parent OP During the Interim Period, the Acquiror Parties, on the one hand, and Parent REIT the Company, on the other hand, shall be given no less than three give counsel for the Company (3in the case of any Acquiror Party) Business Days or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and comment on all materials or documents consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority (including any Competition Authorities) relating to this the Transactions or the Transaction or any Agreements. Each of the parties hereto that is Parties agrees not to be provided to participate in any lendersubstantive meeting or discussion, servicer either in person or agent by telephone with any Governmental Authority in connection with obtaining a Required Consent the Transactions unless it consults with, in the case of any Acquiror Party, the Company, or, in the case of the Company, Acquiror in advance and, to the extent not prohibited by such Competition Authority, gives, in the case of any Acquiror Party, the Company, or, in the case of the Company, Acquiror, the opportunity to attend and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any such meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPdiscussion.
(c) Subject Notwithstanding anything to the contrary in the Agreement, (i) in the event that this Section 7.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) other than for de minimis costs and expenses, in no event shall Acquiror, Pubco, the Merger Subs or the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms and conditions herein provided, in of any Contract to which the event any claim, action, suit, investigation Company or other proceeding by any Governmental Entity its Subsidiaries is a party or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages otherwise in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to with the consummation of the Contemplated Transactions.
(d) Parent REITDuring the Interim Period, Parent OP and Parent Sub shall notAcquiror, on the one hand, and the Company, on the other hand, shall not permit each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of their respective controlled Affiliates Representatives (in their capacity as a representative of an Acquiror Party) or, in the case of the Company, any Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or its Subsidiaries). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, without at its own cost and expense, participate in the prior written consent defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the Representativeother in connection with the defense, enter into settlement and compromise of any mergersuch Transaction Litigation, acquisition, joint venture or debt or equity financing, that would (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation and (iv) reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionscooperate with each other.
Appears in 1 contract
Samples: Merger Agreement (Battery Future Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a7) and Section 9.1(f))and, in exercising the case of any Ancillary Document to which such reasonable efforts to obtain any consent, waiver or other accommodation (including Party will be a party after the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement. Without limiting the generality of the foregoing, each of the parties hereto Parties shall use its commercially reasonable best efforts to (i) cooperate in all material respects obtain, file with each other or deliver to, as applicable, any Consents of any Governmental Entities necessary, proper or advisable to consummate the Transactions, including preparing and submitting any required notices related to any registrations obtained by any Company Group Member from any Governmental Entity and preparing and submitting any requests to amend or novate any Permits that may be necessary as a consequence of the Transactions. Each Party shall bear its out-of-pocket costs and expenses in connection with the preparation and obtaining of any consentsuch Consents. Acquirer shall promptly inform the Company of any communication between any Acquirer Party, waiver or other accommodation (including on the Required Consents) from one hand, and any Person as may be necessary or desirable to obtain any consentGovernmental Entity, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep on the other party informed in all material respects hand, and on a reasonably timely basis the Company shall promptly inform Acquirer of any material communication received by such party or between the Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsTransactions. Without limiting the foregoing, each Party and their respective Affiliates shall not enter into any agreement with any Governmental Entity not to consummate the Transactions, except with the prior written consent of Acquirer and the Company. Nothing in this Section 6.2 obligates any Party or any of its Affiliates to agree to (A1) Parent OP sell, license or otherwise dispose of, or hold separate and Parent REIT shall be given no less than three agree to sell, license or otherwise dispose of, any entities, assets or facilities, (2) terminate, amend or assign existing relationships and contractual rights or obligations, (3) Business Days amend, assign or terminate existing licenses or other agreements, or (4) enter into new licenses or other agreements. No Party shall agree to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided foregoing measures with respect to any lenderother Party, servicer except with Acquirer’s and the Company’s prior written consent.
(b) From and after the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Acquirer Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of any Acquirer Party) or agent Acquirer (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the Transactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with obtaining a Required Consent and the Transactions unless it consults with, in the case of any such materials shall be revised to reflect any reasonable comments Acquirer Party, the Company, or, in the case of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate Company, Acquirer in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPadvance.
(c) Subject Notwithstanding anything to the terms and conditions herein providedcontrary in the Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding that this Section 6.2 conflicts with any other impediment covenant or agreement in this Article 6 that is intended to specifically address certain subject matter, then such other covenant or agreement shall govern and control solely to the consummation extent of the Contemplated Transactionssuch conflict.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITSeller and the Company, Parent OPon the one hand, Parent and Parent, Buyer and Merger Sub, on the Company and the Contributors other hand, shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws and regulations to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated hereby (including, without limitation, including the satisfaction, but not waiver, of the closing conditions of the other Parties set forth in Article 8 7 and the entry into the Tax Matters Agreements, together with the Member Guarantees obtaining consents of all Governmental Entities and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing other Persons listed on Schedule 7.2(d)(iii) (or anything in this Agreement to the contrary (including the preceding sentence of this otherwise listed on Section 6.4(a4.6(b) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group CompaniesCompany Disclosure Schedules and reasonably requested in writing by Parent) necessary to 58 115787664v1 consummate the transactions contemplated hereby and including, the Contributors, Parent REIT, Parent OP, Parent Sub, or any to honor all of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisorsobligations hereunder), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject Each Party will bear its own HSR Act filing fees. Each of Seller and the Company, on the one hand, and Buyer and Parent, on the other hand, shall make (or shall cause their “ultimate parent entity” to make) an appropriate filing, if necessary, pursuant to the terms HSR Act (which filing shall specifically request early termination of the waiting period prescribed by the HSR Act) and conditions any other applicable Law with respect to the transactions contemplated by this Agreement promptly (and in any event, within five (5) Business Days) after the date of this Agreement, each of Agreement and shall supply as promptly as practicable to the parties hereto shall use its reasonable best efforts to (i) cooperate in all appropriate Governmental Entities any additional information and documentary material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as that may be necessary or desirable requested pursuant to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required ConsentsHSR Act. Without limiting the foregoing, (A) Parent OP neither Seller nor the Company, on the one hand, and Parent REIT and Buyer, on the other hand, and their respective Affiliates shall be given no less than three (3) Business Days to review and comment on all materials take any action that has or documents relating to this Transaction may have the effect of extending any waiting period or comparable period under the HSR Act or any other applicable Law or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby, except with the prior written consent of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP Seller (with respect thereto to Parent and Buyer) or Parent (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions respect to Seller or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPCompany).
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Proceeding by any a Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use all reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use all reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(d) Seller and the Company, on the one hand, and Parent REITand Buyer, on the other hand, shall permit counsel for the other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed substantive written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Each of Seller and the Company, on the one hand, and Buyer and Parent, on the other hand, agree not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other in advance and, to the extent not prohibited by such Governmental Entity, gives the other the opportunity to attend and participate in such meeting or discussion. Each of Seller and the Company, on the one hand, and Buyer and Parent, on the other hand, as applicable, shall promptly advise the other Parties upon receiving any substantive communication from any Governmental Entity regarding any consent or approval required for consummation of the transactions contemplated by this Agreement and, unless prohibited by Law, provide each such communication to such other Parties. Each of Seller and the Company, on the one hand, and Buyer and Parent, on the other hand, as applicable, may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.3(d) as “Outside Counsel Only Material”. Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent, Buyer, Seller or the Company, as the case may be) or its legal counsel.
(e) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, except as required by this Agreement, Parent OP and Parent Sub shall not, and its Affiliates shall not permit engage in any of their respective controlled Affiliates to, without the prior written consent of the Representative, action or enter into any merger, acquisition, joint venture transaction or debt permit any action to be taken or equity financingtransaction to be entered into, that would materially impair or delay Parent’s or Buyer’s ability to consummate the transactions contemplated by this Agreement or perform their respective obligations hereunder. Without limiting the generality of the foregoing, none of Parent, Buyer or their respective Subsidiaries and Affiliates shall acquire (whether by merger, consolidation, stock or asset purchase or 59 115787664v1 otherwise), or agree to so acquire, any amounts of assets of or any equity in any other Person or any business or division thereof, unless that acquisition or agreement would not reasonably be expected to materially impair(i) increase the risk of not obtaining any authorizations, delay consents, orders, declarations or prevent approvals of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under the HSR Act, (ii) increase the risk of any Governmental Entity entering an order prohibiting the consummation of the Financing transactions contemplated by this Agreement, or (iii) increase the Contemplated Transactionsrisk of not being able to remove any such order on appeal or otherwise.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, but not waiverincluding the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the conditions precedent to consummating the transactions contemplated by this Agreement. Each party agrees to cooperate fully with the other party in assisting it to comply with this Section 5.12. Without limiting the generality of the closing conditions set forth foregoing, each party hereto shall defend and cooperate with each other party in Article 8 any defending legal proceedings, whether judicial or administrative and the entry into the Tax Matters Agreementswhether brought derivatively or on behalf of third parties, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in challenging this Agreement to or the contrary (including consummation of the preceding sentence transactions contemplated hereby. No consideration, whether such consideration shall consist of this Section 6.4(a) and Section 9.1(f))the payment of money or shall take any other form, in exercising for any such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be agreement necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub transactions contemplated hereby shall not, and shall not permit any of their respective controlled Affiliates to, be given or promised by VA or BB without the prior written consent of the Representativeother. Notwithstanding the foregoing, enter into nothing contained herein shall require (i) any mergerparty hereto or any of their respective Affiliates to sell, acquisitiontransfer, joint venture divest or debt otherwise dispose of any of its respective material lines of business, material assets or equity financing, that would reasonably be expected to materially impair, delay material properties in connection with this Agreement or prevent consummation any of the Financing transactions contemplated hereby, or the Contemplated Transactions(iii) any party hereto to initiate any litigation, make any substantial payment or incur any material economic burden (including as a result of any divestiture), except for payments a party presently is contractually obligated to make, to obtain any consent, waiver, authorization, order or approval.
Appears in 1 contract
Samples: Merger Agreement (Markel Corp)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, including clause (b) below, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 6 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreementdelivery of such Ancillary Document). Notwithstanding Without limiting the foregoing or anything in this Agreement to generality of the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))foregoing, in exercising such each Party shall use reasonable best efforts to obtain consents of all Governmental Entities necessary to consummate the transactions contemplated by this Agreement and the Ancillary Documents, including taking all actions that are required by any consentGovernmental Entity in connection with the filing pursuant to the HSR Act to expeditiously consummate the transactions contemplated by this Agreement, waiver unless such action, individually or together with all other actions, would have a Company Material Adverse Effect. Without the prior written consent of all Parties, no Party shall be permitted to take (or commit to take) any action if such action, individually or together with all other actions taken by the Parties, would have a Company Material Adverse Effect. Nothing in this Section 5.2 obligates any Affiliate of Sponsor to agree to (1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of such Affiliate, (2) terminate, amend or assign existing relationships and contractual rights or obligations, (3) amend, assign or terminate existing licenses or other accommodation agreements, or (including 4) enter into new licenses or other agreements.
(b) Each Party shall (i) make, or cause to be made, an appropriate filing or take, or cause to be taken, any required actions, as applicable, pursuant to the Required ConsentsHSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event, within ten (10) from Business Days) after the date of this Agreement and (ii) respond as promptly as practicable to any Person requests by any Governmental Entity for additional information and documentary material that is not a may be requested pursuant to the HSR Act. All filing fees in connection with the HSR Act shall be Rotor Transaction Expenses. Each Party shall promptly inform the other Parties of any material communication between such Party and any Governmental Entity, none Entity regarding any of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to transactions contemplated by this Agreement or any Ancillary Document. Without limiting the foregoing, each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Rotor and the Company.
(c) From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, the Rotor Parties, on the one hand, and the Company, on the other Transaction Documenthand, make shall give counsel for the Company (in the case of any payment Rotor Party) or Rotor and its counsel (other than to attorneys, accountants and other advisorsin the case of the Company), a reasonable opportunity to review in advance (subject to appropriate redactions for confidentiality and attorney-client privilege concerns), and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or any Ancillary Document. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of any Rotor Party, the Company, or, in the case of the Company, Rotor, in advance and, to the extent reasonably practicable and not prohibited by such Governmental Entity, gives, in the case of any Rotor Party, the Company, or, in the case of the Company, Rotor, the opportunity to attend and participate in such meeting or discussion (which, at the request of Rotor, will be limited to outside antitrust counsel only).
(d) In furtherance of, and without limiting the Parties’ obligations pursuant to, Section 5.2(a), the Company shall use commercially reasonable efforts to obtain, prior to the Closing, written consents, in form and substance reasonably acceptable to Rotor, from each of the counterparties to the agreements set forth on Section 5.2(d) of the Company Schedules; provided that nothing herein shall require a Party or any of its respective Affiliates to expend money, commence any Proceeding or offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other third party. All costs incurred in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT consents shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPCompany Expenses.
(ce) Subject Notwithstanding anything to the terms and conditions herein providedcontrary in the Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding that this Section 5.2 conflicts with any other impediment covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the consummation extent of the Contemplated Transactionssuch conflict.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto Parties shall use its their respective reasonable best efforts to (i) cooperate cause the conditions set forth in all material respects Article VII to be satisfied and to enable the Closing to occur as promptly as practicable and in any event prior to the Outside Date and (ii) obtain as promptly as practicable any consent of, or any approval by, any Governmental Entity or third party which is required to be obtained by the Parties or their respective Affiliates in connection with each other the Transactions. Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any consent, waiver or other accommodation (including consents in connection with the Required Consents) Transactions from any Person as may be necessary (other than from a Governmental Entity), (I) without the prior written consent of Buyer, no Acquired Company or desirable any of its Subsidiaries shall pay or commit to obtain pay to such Person whose approval or consent is being solicited any consentcash or other consideration, waivers make any commitment or approvals required to consummate the Contemplated Transactions incur any liability or other obligation and (iiII) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party no Buyer Party or any of its Affiliates fromshall be required to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or given by such party incur any liability or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. other obligations.
(b) Without limiting the foregoing, Buyer shall, and shall cause its Subsidiaries to use their respective best efforts to, take any and all actions necessary, proper or advisable to avoid each and every impediment under any Antitrust Law or other applicable Law or Order that may be asserted by any Governmental Entity with respect to this Agreement and the Transactions so as to cause the conditions set forth in Article VII to be satisfied and to enable the Closing to occur as promptly as practicable and in any event prior to the Outside Date, including by:
(i) (A) Parent OP agreeing to sell, divest, hold separate, license or otherwise dispose of any assets, operations, divisions or businesses of Subsidiaries or of any of the Group Companies, (B) taking or committing to take such other actions that may limit Buyer’s and Parent REIT shall be given no less than three its Subsidiaries’ freedom of action with respect to, or their ability to retain, any assets, operations, divisions or businesses of any of the Group Companies, (3C) Business Days agreeing to review and comment on all materials terminate any contract or documents relating to this Transaction business relationship of Buyer or any of the parties hereto that is to be provided to its Subsidiaries or of any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives (D) entering into any orders, settlements, undertakings, consent decrees, stipulations or other agreements to effectuate any of the foregoing; notwithstanding anything in this Agreement to the contrary, nothing in this Section 6.4 or elsewhere in this Agreement shall not engage require any Buyer Party to take or participate agree to take any action with respect to The Blackstone Group L.P. (“Blackstone”) or any Affiliate of Blackstone, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Blackstone, including selling, divesting or otherwise disposing of, conveying, licensing, holding separate, or otherwise restricting or limiting its freedom of action with respect to, any assets, business, products, rights, licenses, investments, or assets, or interests therein, other than with respect to any of the Group Companies; and
(ii) opposing fully and vigorously any administrative or judicial action or proceeding that is initiated (or threatened to be initiated) challenging this Agreement or the Transactions or any order that could restrain, prevent or delay the consummation of the Transactions, including by defending through litigation any action asserted by any Person in any meeting court or discussion before any Governmental Entity, and vigorously pursuing all available avenues of administrative and judicial appeal in order to vacate, lift, reverse, overturn, settle or proposed discussion with otherwise resolve any lender, servicer order that would prevent or agent for delay the purpose consummation of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPTransactions.
(c) Subject to the terms and conditions herein providedNo Party shall, in the event directly or indirectly take any claim, action, suitincluding directly or indirectly acquiring or investing in any Person or acquiring, investigation leasing or other proceeding by licensing any Governmental Entity assets, or other Person is commenced which questions the validity or legality agreeing to do any of the Contemplated Transactions foregoing, if doing so would reasonably be expected to prevent or seeks damages in connection therewith, each delay the satisfaction of any of the parties hereto agrees conditions set forth in Article VII to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation be satisfied or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REITWithout limiting the foregoing, Parent OP each of the Parties shall as promptly as practicable make all filings with all Governmental Entities necessary, proper or advisable under this Agreement and Parent Sub applicable Law so as to enable the Closing to occur as promptly as practicable and in any event prior to the Outside Date, including making any filing that may be required under any Antitrust Laws or other applicable Laws or by any Governmental Entity with jurisdiction over enforcement of any such Law. Each of Parties shall notfurnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of any filing required under applicable Antitrust Laws or other applicable Laws. Each Party shall keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Entity with whom a filing has been made pursuant to Antitrust Laws or other applicable Laws.
(e) None of the Parties shall (i) extend any waiting period under the HSR Act or any applicable Antitrust Law or (ii) enter into any agreement with any Governmental Entity not permit any of their respective controlled Affiliates toto consummate the Transactions, without except, in each case, with the prior written consent of the Representativeother Parties.
(f) Nothing in this Section 6.4 shall (x) require any of the Group Companies or Sellers to take or agree to take any action referenced in Section 6.4(b)(i), enter into or (y) permit Buyer or any merger, acquisition, joint venture or debt or equity financingof its Subsidiaries to take any such action with respect to the Group Companies, that would reasonably be expected to materially impair, delay or prevent is not conditioned upon the consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Transaction Agreement (Blackstone Real Estate Income Trust, Inc.)
Efforts to Consummate. (a) Subject to Each of the terms Company, Seller and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Buyer shall use its reasonable best efforts to take, take or cause to be taken, taken all actions and promptly to do, do or cause to be done, done all things reasonably necessary, proper or advisable under applicable Law (i) to consummate and make effective the transactions contemplated by this Agreement as promptly as reasonably practicable following the Contemplated Transactions date of this Agreement and (includingii) to obtain any Governmental Approvals, without limitationincluding FCC Consents and PUC Consents, to enable all waiting periods under the satisfactionHSR Act to expire and to avoid or eliminate any impediment under any Law asserted by any Governmental Authority applicable to the transactions contemplated hereby, but not waiverin each case of this clause (ii), of to cause the closing conditions set forth in Article 8 Closing and the entry into other transactions contemplated hereby to occur as promptly as reasonably practicable following the Tax Matters Agreementsdate of this Agreement and, together in any event, prior to the Outside Date, including promptly complying with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement)or modifying any requests or inquiries for additional information or documentation (including any second request) by any Governmental Authority. Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of contained in this Section 6.4(a) and Section 9.1(f))Agreement, in exercising no event shall Buyer or any of its Subsidiaries or Affiliates be required, in connection with obtaining any Governmental Approvals necessary to cause the conditions set forth in Section 6.1 or 6.2(e) to be satisfied, to take any actions or agree to any restrictions or concessions that, individually or in the aggregate, would (A) reasonably be expected to impair to any material extent the overall benefits to Buyer from the transactions contemplated by this Agreement or (B) impose costs, cause a diminution of value or interfere with the ownership or operation of the Company, in each case, that a business the size of the Company would deem material in any respect (any such reasonable efforts action, a “Burdensome Accommodation”); provided that Buyer shall, if necessary to obtain resolve any consentobjections that a Governmental Authority may assert with respect to the transactions contemplated by this Agreement, waiver offer, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, (x) the sale, divestiture, license or other accommodation disposition of two (including the Required Consents2) from any Person that is not a Governmental Entity, none of the Group Companiesbrands set forth in Section 5.3(a) of the Buyer Disclosure Letter and (y) an agreement to continue the conduct of business described in Section 5.3(a) of the Buyer Disclosure Letter on the terms set forth in such schedule, and any such action described in clause (x) or (y) above shall be deemed not to be, and shall not be taken into account in determining the existence of, a Burdensome Accommodation; provided, however, that if Buyer, the Contributors, Parent REIT, Parent OP, Parent Sub, Company or any of their respective AffiliatesSubsidiaries agree to or are required to submit to terms with respect to the conduct of business described in Section 5.3(a) of the Buyer Disclosure Letter that are less favorable to Buyer, the Company or any of their respective Subsidiaries than the terms set forth in such schedule, then the incremental impact of such terms shall be obligatedtaken into account in determining the existence of a Burdensome Accommodation. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, (x) Seller, the Company and their respective Subsidiaries shall take actions and agree to conditions with respect to the Business or assets of the Company or any of the Company’s Subsidiaries in connection with obtaining any Governmental Approvals only as Buyer may request by notice to Seller in writing as necessary to cause the conditions set forth in Section 6.1 or 6.2(e) to be satisfied, but only if (A) such actions are conditioned on the consummation of the Closing and have no effect prior to the Closing and (B) to the extent any such action requires any expenditures by Seller, the Company or any of their respective Subsidiaries prior to the Closing, such expenditures are borne by Buyer, (y) in no event shall Seller be required to take any action or agree to any restrictions or concessions with respect to itself or its Subsidiaries (other than the Company or its Subsidiaries) or any of their respective businesses (other than the Business) and (z) Buyer shall have sole discretion to determine whether or not to, and shall in no event be required to, initiate any Action or litigate any threatened or pending Action or preliminary or permanent injunction or other order, judgment or decree of a Governmental Authority or Law in connection with obtaining any Governmental Approvals necessary to cause the conditions set forth in Section 6.1 or 6.2(e) to be satisfied.
(b) Seller shall cause the Company to, and Buyer shall, (i) (A) prepare and file (on a confidential basis if reasonably requested by a party and permitted under applicable Law), as soon as practicable after the date hereof and, with respect to filings under the HSR Act, within ten (10) Business Days (or, if agreed by the parties, otherwise as soon as practicable) after the date hereof, such applications, notices, petitions, statements, registrations, submissions of information, requests and other documents as may be required or advisable to be filed by it with the FCC, any State PUC, the Antitrust Division of the U.S. Department of Justice, the U.S. Federal Trade Commission or any other Governmental Authority (including applicable filings under the HSR Act) in order to consummate the transactions contemplated by this Agreement and (B) subject to Section 5.3(a), use their reasonable best efforts to obtain and maintain the FCC Consents, the PUC Consents and all other consents, approvals, authorizations, waivers, permits, licenses, grants, registrations, qualifications, certificates, franchises, variances, exemptions, orders or rights required to be obtained from any other Governmental Authority that are required or advisable to consummate the transactions contemplated by this Agreement, (ii) use reasonable best efforts to comply at the earliest practicable date with a request from any Governmental Authority for additional information, documents or other materials received by each of them or any of their respective Affiliates from any Governmental Authority in respect of such filings or transactions, (iii) subject to applicable Law, promptly (A) inform the other parties of any oral communication with Governmental Authorities and (B) furnish the other parties with copies of all documents and correspondence (1) prepared by or on behalf of such party for submission to any Governmental Authority and (2) received by or on behalf of such party from any Governmental Authority, in each case in connection with the transactions contemplated hereby and (iv) subject to applicable Law, consult with and keep the other parties informed as to the status of such matters. Notwithstanding anything to the contrary contained in the foregoing, no party shall independently participate in any meeting (whether in person or via telephone) with any Governmental Authority expected to address any such filing or any investigation or other inquiry with respect to the transactions contemplated by this Agreement without, to the extent reasonably practicable, giving the other parties prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend or participate. Subject to applicable Law, each of the Company, Seller and Buyer shall cooperate with the other in the preparation and filing of any applications, notices, petitions, statements, registrations, submissions of information and requests for additional information from Governmental Authorities in connection with the transactions contemplated by this Agreement, including (x) by providing such information as may be reasonably necessary for inclusion in such applications, notices, petitions, statements, registrations, submissions of information and responses and (y) by providing copies of all such documents to the non-filing party and their advisors prior to making such filing and, if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith. Subject to applicable Law, to the extent that any application, notice, registration or request so filed by any party contains any significant information relating to the other parties or the Company or any of its Subsidiaries, prior to submitting such application, notice, registration or request to any Governmental Authority, such party shall permit the other parties to review such information and shall consider in good faith the suggestions of such other parties with respect thereto. None of Seller, the Company or any of their respective Subsidiaries or Affiliates shall make any offer, acceptance or counteroffer to, or otherwise engage in negotiations with, any Governmental Authority with respect to any action set forth in Section 5.3(a), except as otherwise specifically agreed to with Buyer. Buyer shall, subject to reasonable coordination and consultation with Seller, be entitled to control all aspects of any negotiations with any Governmental Authority in connection with the transactions contemplated by this Agreement, including with respect to any action set forth in Section 5.3(a).
(c) To the extent that any consent, authorization, approval or waiver is required under any Material Contract in connection with the consummation of the transactions contemplated by this Agreement, the Company and Seller shall use commercially reasonable efforts to obtain such consent, authorization, approval or waiver on or prior to the Closing Date; provided in Annex E that none of the Company, Seller or Section 6.4(c) any of their respective Subsidiaries shall be required to expend any funds or Section 6.5, to incur any liability, commence Liability or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other third party in connection with obtaining any such consent, waiver unless any accommodation is contingent on the Closing and Buyer consents in writing to such accommodation and bears any expenses incurred by Seller or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent Company in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPaccommodation.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Stock Purchase Agreement (America Movil Sab De Cv/)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company Purchaser and the Contributors Seller shall use reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together 7). Each party shall cooperate fully with the Member Guarantees other party and Capital Contribution Agreements its respective Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals from Governmental Entities. The parties hereto shall not willfully take any action that are exhibits theretowill have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals. Each party hereto shall have made or shall make an appropriate filing, if necessary, pursuant to the HSR Act and any applicable foreign antitrust or competition Laws with respect to the transactions contemplated by this Agreement promptly after the date hereof (and in any event, within ten (10) Business Days of the date hereof in connection with any filings required pursuant to the HSR Act) (and such filing shall request “early termination” of any applicable waiting periods), and shall supply as promptly as practicable to the New Company Agreement)appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the HSR Act and any foreign antitrust or competition Laws. All HSR Act filing fees and any filing fees in connection with any applicable foreign antitrust or competition Laws shall be borne equally by Purchaser and Seller.
(b) Notwithstanding the foregoing or anything foregoing, nothing in this Agreement Section 6.4 shall require, or be construed to require, Purchaser or its Affiliates to agree to: (i) sell, hold, divest, discontinue or limit, before or after the contrary (including the preceding sentence Closing Date, any assets, businesses or interests of this Section 6.4(a) and Section 9.1(f))Purchaser, in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Companies or any of their respective Affiliates; (ii) any conditions relating to, shall or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be obligated, except as otherwise provided expected to result in Annex E a Material Adverse Effect or Section 6.4(c) materially and adversely impact the economic or Section 6.5, business benefits to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any Purchaser of the foregoing.
transactions contemplated by the Agreement; or (biii) Subject to any material modification or waiver of the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order Order is issued in any such action, suit or other proceeding, to use reasonable best efforts to have such injunction or other order Order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(d) Parent REITEach party hereto shall, Parent OP as promptly as practicable, notify the other parties hereto of any substantive communication it or its Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and, to the extent permitted by Law, permit the other parties hereto to review in advance any proposed substantive communication by it to any Governmental Entity. No party hereto shall agree to participate in any substantive meeting with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other parties hereto in advance or is otherwise required by Law and, to the extent permitted by such Governmental Entity, gives the other parties hereto the opportunity to attend and Parent Sub participate at such meeting. Each party hereto will provide the other parties hereto with copies of all correspondence, filings or communications between it or any of its representatives, on the one hand, and any Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement. The parties hereto may, as they in good xxxxx xxxx advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 6.4 as “outside counsel only.” If any such designation is made by the parties hereto, the parties hereto shall work together in good faith to enter into a “clean team” agreement on reasonable and customary terms to be mutually agreed upon by the parties hereto providing for the disclosure of such competitively sensitive materials to outside counsel or other external agents or representatives of the applicable party hereto. In addition, subject to applicable Law, the parties hereto shall consult and cooperate with each other in advance in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and proposals made or submitted to any Governmental Entity regarding the transactions contemplated by this Agreement by or on behalf of any party hereto.
(e) Purchaser shall not, and shall cause its Affiliates and ultimate parent entities not permit any of their respective controlled Affiliates to, without the prior written consent acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the Representativeassets of or equity in, enter or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests, if the entering into any mergerof a definitive agreement relating to, or the consummation of such acquisition, joint venture merger or debt or equity financing, that consolidation would reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period; (ii) materially impair, delay increase the risk of any Governmental Entity seeking or prevent entering an Order prohibiting the consummation of the Financing transactions contemplated by this Agreement; or (iii) materially increase the Contemplated Transactionsrisk of not being able to remove any such Order on appeal.
(f) Without limiting the first sentence of Section 6.4(a), Seller shall cause each of the Group Companies to, (i) use reasonable best efforts to obtain any consents, waivers or approvals from, and (ii) provide any notices to, any equityholders of Seller or any third parties (including the Persons with respect to the Contracts set forth on Schedule 6.4(f)), in each case as may be required or necessary pursuant to the terms of any Contract with such Persons in connection with the transactions contemplated hereby; provided that neither Seller nor any Group Company shall be required to pay any amounts to any third party that is not a Governmental Entity in satisfaction of its obligations pursuant to this Section 6.4(f). Without limiting the foregoing, Seller will cause each of the Group Companies to, provide Purchaser with drafts of such notices and consents described in the immediately preceding sentence for Purchaser’s review and comment reasonably in advance of the delivery of such notices and consents to the applicable Persons (which delivery shall occur reasonably promptly following the date hereof, but in any event no later than ten (10) Business Days following the date hereof; provided, that the failure by the Group Companies to complete such delivery with respect to any notice or consent during such ten (10) Business Day period shall not, by itself, constitute a material breach of the preceding provisions of this sentence unless Purchaser is materially prejudiced by any such failure(s)), and will consider any such comments in good faith in advance of such delivery.
Appears in 1 contract
Efforts to Consummate. (a) Subject With respect to the terms and conditions herein providedany requests, inquiries, Actions or other proceedings by or from Governmental Authorities, each of Parent REITthe Company, Parent OPListCo and Merger Sub shall (i) diligently and expeditiously defend and use commercially reasonable efforts to obtain any necessary clearance, Parent Subapproval, consent under any applicable Laws prescribed or enforceable by any Governmental Authority for the Transactions and to resolve any objections as may be asserted by any Governmental Authority with respect to the Transactions; and (ii) cooperate fully with each other in the defense of such matters. To the extent not prohibited by Law, the Company shall promptly furnish to ListCo, and ListCo and Merger Sub shall promptly furnish to the Company, copies of any notices or communications received by such Party or any of its Affiliates from any Governmental Authority with respect to the Transactions, and each such Party shall permit counsel to the other parties an opportunity to review in advance, and each such Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party or its Affiliates to any Governmental Authority concerning the Transactions. To the extent not prohibited by Law, the Company agrees to provide ListCo and its counsel, and ListCo agrees to provide to the Company and its counsel, the opportunity, to the extent practical, on reasonable advance notice, to participate in any material substantive meetings or discussions, either in person or by telephone, between such Party or any of its Affiliates or Representatives, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions.
(b) During the Interim Period, ListCo, on the one hand, and the Contributors Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of ListCo, any Subsidiary of ListCo or any of their respective Representatives (in their capacity as a representative of ListCo or any Subsidiary of ListCo) or, in the case of the Company, any Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). ListCo and the Company shall each (i) keep the other Party timely informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at such other Party’s own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, and (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation. Notwithstanding the foregoing, in no event shall ListCo (or any of its Representatives) on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed).
(c) Each Party shall otherwise use its reasonable best efforts to cooperate with the other Parties to take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law Laws or otherwise to satisfy the conditions to closing set forth in Article IX and to consummate and make effective as promptly as practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Merger Agreement (Fuwei Films (Holdings), Co. Ltd.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, Contributor, SUN LLC and each of Parent REITAcquiror Party shall use, Parent OPand Contributor or Retail Parent, Parent Subas applicable, shall cause the Company Retail Entities and the Contributors shall use Contributor Group, as applicable, to use, commercially reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated transactions contemplated by this Agreement (including the Pre-Closing Transactions (including, without limitation, and the satisfaction, but not waiver, of the closing conditions set forth in Article 8 8). Contributor, SUN LLC and each Acquiror Party shall use, and Contributor or Retail Parent, as applicable, shall cause the Retail Entities and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoContributor Group to use, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement Acquiror shall cause SUN LLC and each Acquiror Party to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))use, in exercising such commercially reasonable efforts to obtain any consent, waiver consents of all Governmental Entities or other accommodation third parties necessary to consummate the transactions contemplated by this Agreement (including the Required Consents) from Pre-Closing Transactions). All costs incurred in connection with obtaining such consents shall be borne by the Party incurring such costs and, in no event, shall Contributor, any Person that is not a Governmental Entity, none of its respective Affiliates or any member of the Contributor Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall Subject Entity be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, required to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment payments (other than to routine administrative fees, contractual change of control payments and attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise’ fees) or agree provide other types of consideration in order to seek or commit to facilitate the obtaining of any of the foregoingsuch consents.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in In the event any claim, action, suit, investigation or other proceeding Proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto agrees Parties agree to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding Proceeding and, if an injunction or other order is issued in any such action, suit or other proceedingProceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionstransactions contemplated hereby.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Contribution Agreement
Efforts to Consummate. (a) Subject to the terms and conditions herein providedherein, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of including (i) satisfying the closing conditions set forth in Article 8 IX and (ii) consummating any PIPE Financing on the terms and subject to the conditions contemplated in connection therewith). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Authorities or other Persons, in each case, as necessary to consummate the Transactions and the entry into transactions contemplated by the Tax Matters Transaction Agreements.
(b) Notwithstanding anything to the contrary in the Agreement, together (i) in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall SPAC or any Group Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which any Group Company is a party or otherwise in connection with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoconsummation of the Transactions.
(c) During the Interim Period, SPAC, on the one hand, and the New Company Agreement). Notwithstanding Company, on the foregoing other hand, shall each notify the other in writing promptly after learning of any shareholder demands or anything in this Agreement to the contrary other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the preceding sentence of this Section 6.4(a“Transaction Litigation”) and Section 9.1(f))commenced against, in exercising such reasonable efforts to obtain the case of SPAC, SPAC or any consentof its Representatives (in their capacity as a representative of SPAC) or, waiver or other accommodation (including in the Required Consents) from any Person that is not a Governmental Entity, none case of the Group CompaniesCompany, the Contributors, Parent REIT, Parent OP, Parent Sub, Company or any Subsidiary of the Company or any of their respective Affiliates, shall be obligated, except Representatives (in their capacity as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement a representative of the Company or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any Subsidiary of the foregoing.
(b) Subject to Company). SPAC and the terms and conditions of this Agreement, Company shall each of the parties hereto shall use its reasonable best efforts to (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate in all material respects with each the other in connection with obtaining the defense, settlement and compromise of any consentsuch Transaction Litigation, waiver or other accommodation (including iii) consider in good faith the Required Consents) from other’s advice with respect to any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions such Transaction Litigation and (iiiv) keep reasonably cooperate with each other. Notwithstanding the other party informed in all material respects foregoing, (x) SPAC and on a reasonably timely basis the Company shall jointly control the negotiation, defense and settlement of any material communication received by such party Transaction Litigation and (y) in no event shall SPAC (or any of its Affiliates fromRepresentatives), on the one hand, or given by such party the Company (or any of its Affiliates toRepresentatives), on the other hand, settle or compromise any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, Litigation brought without the prior written consent of the Representativeother Party (not to be unreasonably withheld, enter into any merger, acquisition, joint venture conditioned or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsdelayed).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cartica Acquisition Corp)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))VI and, in exercising the case of any Ancillary Document to which such reasonable efforts to obtain any consent, waiver or other accommodation (including Party will be a party after the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions date of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consentexecute and deliver such Ancillary Document when required pursuant to this Agreement, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in Company taking, or causing to be taken, all material respects and actions necessary or advisable to cause the agreements set forth on a reasonably timely basis Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as of the Closing without any material communication received by such party further obligations or Liabilities to the Company or any of its Affiliates from(including the other Group Companies and, from and after the Closing, the Listed Parties)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or given deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by such party this Agreement or the Ancillary Documents. Armada (or Cayman NewCo) shall promptly inform the Company of any material communication between any Listed Party, on the one hand, and any Governmental Entity, on the other hand, and the Company shall promptly inform Armada (or Cayman NewCo) of any material communication between the Company or any other Group Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of its Affiliates to, the transactions contemplated by this Agreement or any lender, servicer or agent in connection with obtaining the Required ConsentsAncillary Document. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies each Party and their representatives respective Affiliates shall not engage or participate in enter into any meeting or discussion or proposed discussion agreement with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity not to consummate the transactions contemplated hereby or other Person is commenced which questions by the validity or legality of the Contemplated Transactions or seeks damages in connection therewithAncillary Documents, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without except with the prior written consent of Armada and the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation Company. In furtherance and not in limitation of the Financing foregoing in this Section 5.2(a), to the extent required under any Antitrust Laws, each party hereto agrees to promptly (and in connection with any required filings under the HSR Act, no later than ten (10) Business Days after the date of this Agreement) make any required filing or application under Antitrust Laws, as applicable. Further, notwithstanding anything to the Contemplated Transactionscontrary contained in this Agreement, the Parties agree and acknowledge that any costs or fees related to any required filing or application under Antitrust Laws shall be borne 50/50 by Armada and the Company.
(b) Notwithstanding anything to the contrary in the Agreement, in the event that this Section 5.2 conflicts with any other covenant or agreement in this Article V that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.
Appears in 1 contract
Samples: Business Combination Agreement (Armada Acquisition Corp. I)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedof this Agreement, each of Parent REIT, Parent OP, Parent SubPurchaser, the Company (and the Contributors Company shall cause the other Transferred Entities to) and Sellers shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate the Sale and the other transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) the taking of all acts reasonably necessary to cause the conditions precedent set forth in Article VI to be satisfied; (ii) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders, expiration of applicable waiting periods and authorizations from Governmental Entities and third parties and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Entity; (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the Sale and the other transactions contemplated hereby, including seeking to have any stay or temporary restraining order, decree, injunction or other agreement entered by any court or other Governmental Entity vacated or reversed; and (iv) the execution and delivery of additional instruments necessary to consummate the Sale and the other transactions contemplated hereby, and to fully carry out the purposes of, this Agreement. In furtherance and not in limitation of the foregoing, each of Purchaser and Sellers shall (A) make effective or cause to be made the filings, registrations, notices, and declarations required of such Party under the HSR Act and any other Antitrust Laws with respect to the transactions contemplated by this Agreement as promptly as practicable after the Contemplated Transactions date of this Agreement (and, in the case of any filings required under the HSR Act, in no event later than fifteen (15) days from the execution of this Agreement, unless otherwise agreed to by Purchaser and Sellers); (B) respond to, and comply with, at the earliest practicable date, any inquiries received from any Governmental Entity for additional information and documentary materials received by such Party from the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “DOJ”), or by any other Governmental Entity (including under any Antitrust Laws), in respect of such filings or such transactions and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity not to consummate the transactions contemplated in this Agreement, except with the prior written consent of the other Parties hereto; and (C) act in good faith and reasonably cooperate with the other Parties in connection with any such filings (including, without limitationif requested by any other Party, to accept all reasonable additions, deletions or changes suggested by such other Party in connection therewith) and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the satisfactionXxxxxxx Antitrust Act of 1890, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits theretoas amended, and the New Company rules and regulations promulgated thereunder, the Xxxxxxx Act of 1914, as amended, and the rules and regulations promulgated thereunder, and any other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such transaction.
(b) In connection with and without limiting the generality of the foregoing, each of Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement). Notwithstanding the foregoing In connection therewith, if any Action is instituted (or anything in threatened to be instituted) challenging any transaction contemplated by this Agreement as inconsistent with or violative of any Law, each of Purchaser and Sellers shall cooperate with each other with respect to such objection and use its reasonable best efforts to vigorously contest and resist (by negotiation, litigation or otherwise) any Action related thereto, including any administrative or judicial action, and to have vacated, lifted, reversed or overturned any order, decree, injunction or other agreement whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Sale or the other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal.
(c) In furtherance and not in limitation of the foregoing, Purchaser and where applicable, Sellers shall (i) furnish to the other Parties as promptly as reasonably practicable all information required for any application or other filing to be made by any other Party pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (ii) promptly inform the other Parties of any substantive written or oral communications with, and inquiries or requests for information from, any Governmental Entity in connection with the transactions contemplated herein; (iii) consult with the other Parties in advance of any substantive meeting or conference, whether in-person or by telephone, with any Governmental Entity or, in connection with any proceeding by a private party under any Antitrust Law or other regulatory Law, with such private party, and to the extent not prohibited by such Governmental Entity or such private party, give the other Parties the opportunity to attend and participate in such meeting, telephone call or discussion; (iv) furnish the other Parties promptly with copies of all correspondence, filings and communications relating to any Antitrust Law or any Action pursuant to any Antitrust Law between them and their Affiliates and their respective representatives on the one hand, and the FTC, the DOJ or any other Governmental Entity or members of their respective staffs on the other hand, with respect to the transactions contemplated herein; provided, however, that materials provided to the other Parties may be redacted (A) to remove references to valuation, (B) as necessary to comply with existing contractual arrangements with respect to confidentiality, and (C) as necessary to address reasonable attorney-client or other privilege concerns; and (v) act in good faith and reasonably cooperate with the other Parties in connection with any such registrations, declarations and filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under the HSR Act or any other Antitrust Law with respect to any such registration, declaration and filing or any such transaction. Purchaser and Sellers may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.2 as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, directors or managers of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Sellers, as the case may be) or its legal counsel.
(d) In furtherance and not in limitation of the foregoing, if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, Purchaser shall take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as any Governmental Entity may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated hereby so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any businesses, product lines, assets or capital stock or other interests of Purchaser or the Transferred Entities, and (ii) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Purchaser or its Subsidiaries’ (including the Transferred Entities) freedom of action with respect to, or its ability to retain, one or more of their or their Subsidiaries’ businesses, product lines, assets or capital stock or other interests, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding that would otherwise have the effect of preventing the Closing or delaying the Closing beyond the Outside Date; provided that (i) neither Purchaser nor the Transferred Entities shall be obligated to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Transferred Entities, unless such requirement, condition, understanding, agreement or order is binding only in the event that the Closing occurs, and (ii) Purchaser shall not be required to agree to any amendment to, or waiver under, this Agreement in connection with obtaining any requisite consent or expiration of an applicable waiting period under the HSR Act or other applicable Antitrust Law.
(e) Notwithstanding anything to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver herein or other accommodation (including the Required Consents) from any Person that is not a Governmental Entityotherwise, none of the Group CompaniesSellers, the ContributorsTransferred Entities or their respective Representatives or Affiliates shall (i) propose, Parent REITnegotiate, Parent OPoffer or commit to making or effecting any divestitures, Parent Subdispositions, or licenses of any assets, properties, products, rights, services or businesses of Purchaser, Apollo Global Management LLC, any of its affiliated investment funds or portfolio companies, any Transferred Entity or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c(ii) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment other remedy, requirement, obligation, condition or restriction related to this Agreement the conduct of Purchaser’s, Apollo Global Management LLC’s, any of its affiliated investment funds’ or portfolio companies’, any Transferred Entity’s or any other Transaction Documentof their respective Affiliates’ businesses, make in each case in order to resolve any payment (other than Governmental Entity’s objections to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of concerns about the foregoingtransactions contemplated by this Agreement.
(bf) Subject to the terms and conditions of Without limiting any other obligation under this Agreement, each during the period from the date of this Agreement until the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewithClosing Date, each of the parties hereto agrees to cooperate Purchaser and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub Sellers shall not, and shall cause its Subsidiaries and Affiliates not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into take or agree to take any merger, acquisition, joint venture or debt or equity financing, action that would reasonably be expected to materially impairprevent or delay the Parties from obtaining any governmental approval in connection with the transactions contemplated by this Agreement.
(g) Purchaser agrees to provide such security and assurances as to financial capability, delay resources and creditworthiness as may be reasonably requested by any Governmental Entity whose consent or prevent consummation approval is sought in connection with the transactions contemplated hereby. Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees and payments to any Governmental Entity in order to obtain any consents, approvals or waivers pursuant to this Section 5.2.
(h) Without limiting Purchaser’s obligations pursuant to this Section 5.2, (i) Purchaser shall determine strategy and timing, lead all proceedings and coordinate all activities with respect to seeking any actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers of any Governmental Entity as contemplated hereby, and (ii) the Financing Company shall, and shall cause each of its Subsidiaries to, to take such actions as reasonably requested by Purchaser in connection with obtaining any such actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers, so long as any such action is binding only in the Contemplated Transactionsevent that the Closing occurs.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions (including, without limitation, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))6 and, in exercising the case of any Ancillary Document to which such reasonable efforts to obtain any consent, waiver or other accommodation (including Party will be a party after the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions date of this Agreement, each of the parties hereto shall use its to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to obtain the PIPE Financing and the Convertible Bridge Financing on the terms and subject to the conditions set forth in the Subscription Agreements and Side Letter Agreements (iwith respect to the PIPE Financing) cooperate and the Convertible Bridge Financing Documents (with respect to the Convertible Bridge Financing) and (iii) FEAC taking, or causing to be taken, all actions necessary or advisable to extend the period of time to consummate an initial business combination by (x) a first additional three-month period (up to 21 months from FEAC’s IPO) if FEAC anticipates that it may not be able to consummate the Transactions within 18 months from its IPO and (y) a second additional three-month period (up to 24 months from FEAC’s IPO) if FEAC anticipates that it may not be able to consummate the Transactions within 21 months from its IPO, in all material respects each in accordance with FEAC’s Governing Documents and the Trust Agreement). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the Transactions. Each Party shall bear its own costs incurred in connection with obtaining such Consents. Each Party shall (i) make any consentappropriate filings or take, waiver or other accommodation (including cause to be taken, any required actions pursuant to any Foreign Antitrust Laws with respect to the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate Transactions promptly following the Contemplated Transactions date of this Agreement and (ii) keep respond as promptly as reasonably practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested under any Foreign Antitrust Laws. FEAC shall promptly inform the Company of any substantive communication between FEAC, on the one hand, and any Governmental Entity, on the other party informed in all material respects hand, and on a reasonably timely basis the Company shall promptly inform FEAC of any material substantive communication received by such party or between the Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of its Affiliates from, or given the Transactions and to the extent permitted by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentslaw. Without limiting the foregoing, (A) Parent OP each Party and Parent REIT their respective Affiliates shall be given no less than three (3) Business Days not extend any waiting period, review period or comparable period under any applicable Foreign Antitrust Laws or enter into any agreement with any Governmental Entity not to review consummate the Transactions, except with the prior written consent of FEAC and comment on all materials or documents relating to the Company. Nothing in this Transaction Section 5.2 obligates any Party or any of the parties hereto that is its Affiliates to be provided agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company or any entity, facility or asset of such Party or any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any lenderof the foregoing measures with respect to any other Party or any of its Affiliates, servicer except with FEAC’s and the Company’s prior written consent.
(b) From and after the date of this Agreement until the earlier of the Closing or agent termination of this Agreement in accordance with its terms, FEAC, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of FEAC) or FEAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written substantive communication to any Governmental Entity relating to the Transactions. Any materials exchanged in connection with obtaining a Required Consent this Section 5.2 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel (including in-house counsel) of any Party, and to remove competitively sensitive material; provided, that such Party may, as it deems advisable and necessary, designate any such materials shall be revised provided to reflect any reasonable comments under this Section 5.2 as “outside counsel only.” Each of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall Parties agrees not engage or to participate in any substantive meeting or discussion discussion, either in person or proposed discussion by telephone with any lenderGovernmental Entity in connection with the Transactions unless it consults with, servicer in the case of FEAC, the Company, or, in the case of the Company, FEAC in advance and, to the extent reasonably practicable and not prohibited by such Governmental Entity, gives, in the case of FEAC, the Company, or, in the case of the Company, FEAC, the opportunity to attend and participate in such meeting or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPdiscussion.
(c) Subject Notwithstanding anything to the terms and conditions herein providedcontrary in the Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding that this Section 5.2 conflicts with any other impediment covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the consummation extent of the Contemplated Transactionssuch conflict.
(d) Parent REITFrom and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Parent OP and Parent Sub shall notFEAC, on the one hand, and the Company, on the other hand, shall not permit each notify the other in writing promptly after learning of any shareholder demands or other shareholder Proceedings (including derivative claims and Arrangement Dissent Rights) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of FEAC, FEAC, Can Merger Sub or any of their Representatives (in their capacity as a representative of FEAC) or, in the case of the Company, any Group Company or any of their respective controlled Affiliates Representatives (in their capacity as a representative of a Group Company). Subject and in addition to Section 2.3 with respect to Arrangement Dissent Rights, FEAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, (iv) reasonably cooperate with each other and (v) refrain from settling or compromising any Transaction Litigation without the prior written consent of, in the case of the RepresentativeGroup Companies, enter into any mergerFEAC and in the case of FEAC or Can Merger Sub, acquisitionthe Company (such consent not to be unreasonably withheld, joint venture conditioned or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsdelayed).
Appears in 1 contract
Samples: Business Combination Agreement (Forbion European Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REITAcquiror, Parent OPSwiss NewCo, Parent SubUS HoldCo, DE Merger Sub and the Company shall, and the Contributors Company shall cause its Subsidiaries to: (i) use commercially reasonable efforts to assemble, prepare and file any information (and, as needed, to supplement such information) as may be reasonably necessary to obtain as promptly as practicable all Governmental Authorizations (including Gaming Approvals) required to be obtained in connection with the Transactions, (ii) use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions (includingTransactions, without limitation, the satisfaction, but not waiver, of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such using commercially reasonable efforts to obtain any consent, waiver or other accommodation all material Governmental Authorizations (including the Required ConsentsGaming Approvals) from that any Person that is not a Governmental Entity, none of the Group CompaniesAcquiror, the ContributorsCompany, Parent REITor their respective Affiliates are required to obtain in order to consummate the Transactions; provided that in no event shall Swiss NewCo, Parent OPAcquiror, Parent US HoldCo, DE Merger Sub, the Company or its Subsidiaries be obligated to bear any of their respective Affiliatesmaterial expense, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur pay any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer material fee or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other concession in connection with obtaining any consentsuch approvals (other than any required filing fees in connection therewith); provided, waiver or however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such approvals, and (iii) take such other accommodation (including the Required Consents) from any Person action as may reasonably be necessary or desirable as any other Party may reasonably request to obtain any consent, waivers or approvals required to consummate satisfy the Contemplated Transactions and (ii) keep conditions of the other party informed Parties set forth in all material respects and on a reasonably timely basis Article X or otherwise to comply with this Agreement. The Parties shall promptly inform the other of any material substantive communication received by such party or between any itself, and any Governmental Authority regarding any of its Affiliates from, or given the transactions contemplated by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsthis Agreement. Without limiting the foregoing, (A) Parent OP each Party and Parent REIT their respective Affiliates shall be given no less than three (3) Business Days not enter into any agreement with any Governmental Authority not to review and comment on all materials or documents relating to consummate the transactions contemplated hereby, except with the prior consent of the other Parties. Nothing in this Transaction Section 9.1 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of the parties hereto Company or any of its Subsidiaries or any entity, facility or asset of such Party or any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. Without limiting in any respect the Parties’ obligations under this Section 9.1, the Company shall have the right to direct, devise and implement the strategy with respect to obtaining Governmental Authorizations (including Gaming Approvals) in accordance with this Section 9.1; provided Acquiror is provided prompt notice by the Company of material communications and developments with respect to such process; provided, further, that is the Company shall not be permitted to be provided consent to any lenderaction, servicer omission, undertaking, commitment or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion agreement with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject Governmental Authority to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any extent that such action, suit omission, undertaking, commitment or other proceedingagreement requires any action, to use reasonable efforts to have such injunction omission, commitment, undertaking or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled agreement by Acquiror or its Affiliates to, without the prior written consent of Acquiror.
(b) From and after the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation date of this Agreement until the earlier of the Financing Acquisition Closing or termination of this Agreement in accordance with its terms, the Contemplated Parties shall give counsel for the other Parties a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed material written communication to any Governmental Authority relating to the transactions contemplated by this Agreement, including in respect of any Tax rulings related thereto. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person, videoconference, or by telephone with any Governmental Authority in connection with the transactions contemplated by this Agreement, including in respect of any Tax rulings related thereto, unless, to the extent not prohibited by such Governmental Authority, it consults with the other Parties, in advance. Each of the Parties shall use commercially reasonable efforts to provide (or use commercially reasonable efforts to cause its Affiliates provide) to the other Parties reasonable information or documents in such Party’s possession and within its control as are necessary or required for the preparation of any filings, notifications or submissions in connection with all Governmental Authorizations (including Gaming Approvals) required to be obtained in connection with the Transactions. Notwithstanding the foregoing, any materials shared may be redacted before being provided to the other Parties (i) to remove references concerning the valuation of the Company, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to avoid disclosure of other competitively sensitive information or to address reasonable privilege or confidentiality concerns.
Appears in 1 contract
Samples: Business Combination Agreement (Cohn Robbins Holdings Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper necessary or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing conditions set forth in Article 8 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement. Without limiting the entry into generality of the Tax Matters Agreementsforegoing, together each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents. The Company shall bear 100% of the costs incurred in connection with obtaining such Consents, and any and all filing fees or other costs payable to a Governmental Entity in connection with (x) the preparation, filing or mailing of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the Member Guarantees preparation, filing or mailing of the Registration Statement / Proxy Statement and Capital Contribution Agreements (y) the French Foreign Investment Clearance and any approvals required by a Governmental Entity under applicable antitrust or competition Laws (excluding, in each case, legal fees) (collectively, the “Filing and Consent Fees”); provided, however, that, subject to Section 8.6, each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents; provided, further, that are exhibits theretoif this Agreement is terminated in accordance with Section 7.1 prior to the Closing, within five (5) Business Days of such termination SPAC shall reimburse the Company for 50% of the Filing and Consent Fees actually paid by the Company hereunder. SPAC shall promptly inform the Company of any material communication between SPAC, on the one hand, and any Governmental Entity, on the other hand, and the New Company Agreement)shall promptly inform SPAC of any material communication between the Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of the transactions contemplated by this Agreement or any Ancillary Document. Notwithstanding Nothing in this Section 5.2 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company or any entity, facility or asset of such Party or any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures with respect to any other Party or anything in any of its Affiliates, except with SPAC’s and the Company’s prior written consent.
(b) As promptly as reasonably practicable following receipt of the SPAC Warrant Holder Approval SPAC shall execute and deliver, and cause Trustee to execute and deliver, to the Company the SPAC Warrant Amendment.
(c) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, SPAC, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of SPAC or the Company) or SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or the Ancillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of SPAC, the Company, or, in the case of the Company, the SPAC in advance and, to the extent not prohibited by such Governmental Entity, gives, in the case of SPAC, the Company, or, in the case of the Company, the SPAC, the opportunity to attend and participate in such meeting or discussion.
(d) Notwithstanding anything to the contrary in the Agreement, in the event that this Section 5.3 conflicts with any other covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.
(e) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, SPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder Proceedings (including derivative claims and Dissenters’ Rights) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the preceding sentence of this Section 6.4(a“Transaction Litigation”) and Section 9.1(f))commenced against, in exercising such reasonable efforts to obtain the case of SPAC, SPAC or any consentof its Representatives (in their capacity as a representative of SPAC) or, waiver or other accommodation (including in the Required Consents) from any Person that is not a Governmental Entity, none case of the Company, any Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, Company or any of their respective AffiliatesRepresentatives (in their capacity as a representative of a Group Company). Subject and in addition to Section 2.6 with respect to Dissenters’ Rights, SPAC and the Company shall be obligatedeach (i) keep the other reasonably informed regarding any Transaction Litigation, except as otherwise provided (ii) give the other the opportunity to, at its own cost and expense, participate in Annex E or Section 6.4(cthe defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree consider in good faith the other’s advice with respect to any amendment such Transaction Litigation, (iv) reasonably cooperate with each other and (v) refrain from settling or compromising any Transaction Litigation without the prior written Consent of SPAC or the Company, as applicable (not to this Agreement be unreasonably withheld, conditioned or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisorsdelayed), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(bf) Subject The SPAC Board shall not rescind, amend or adopt any resolution in conflict with, its resolutions approving the Extension. SPAC shall perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may be required to effect the terms and conditions of Extension, if this AgreementAgreement shall not have been terminated prior to December 13, each of the parties hereto 2022.
(g) The Company shall use its reasonable best efforts to (i) cooperate in all material respects obtain the landlords’ written approval with each other in connection with obtaining any consent, waiver or other accommodation (including respect to the Required Consents) from any Person as may Merger for the Company to be necessary or desirable to obtain any consent, waivers or approvals required to consummate substituted within the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any rights of the parties hereto that is to be provided to any lender, servicer or agent former tenant in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject relation to the terms financial lease entered into on 29 November 2007 between Crédit Mutuel Real Estate Lease and conditions herein providedBPCE Lease Immo, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order liftedas landlords, and to cooperate reasonably regarding any other impediment to the consummation Company, as tenant, for a plot of the Contemplated Transactionsland located ZAC des Granges in Bernay (27300).
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Business Combination Agreement (Genesis Growth Tech Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein providedcontained herein, from the date hereof until the earlier of the termination of this Agreement and the Closing Date, each of Parent REIT, Parent OP, Parent Sub, the Company Purchaser and the Contributors US Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement (including, without limitation, including the satisfaction, but not waiver, of the closing Closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company AgreementVII). Notwithstanding the foregoing or anything The Parties acknowledge and agree that nothing contained in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))6.04 shall limit, expand or otherwise modify in exercising such reasonable any way any efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit standard explicitly applicable to any of the foregoingPurchaser’s or US Purchaser’ obligations under this Agreement.
(b) Subject Notwithstanding anything herein to the terms contrary, Purchaser and conditions US Purchaser shall, promptly after the date hereof and with Seller’s and US Seller’s reasonable cooperation and assistance, make or cause to be made all filings and submissions required to be made, if any, with applicable Governmental Entities, in connection with the consummation of the transactions contemplated herein. In connection with the consummation of the transactions contemplated herein, Purchaser, US Purchaser, Seller and US Seller shall, and shall cause their respective Affiliates to, promptly respond to any requests for additional information, including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Entities. Notwithstanding anything herein to the contrary, Purchaser, US Purchaser, Seller and US Seller shall, and shall cause their respective Affiliates to, cooperate in good faith with any Governmental Entities and undertake promptly any and all reasonable action required to complete the transactions contemplated by this Agreement expeditiously and lawfully. Without limiting the generality of the foregoing, if a suit or other Action is threatened or instituted by any Governmental Entity or any other entity challenging the validity or legality or seeking to restrain the consummation of the transactions contemplated by this Agreement, each of the parties hereto Purchaser, US Purchaser, Seller and US Seller shall use its reasonable best efforts to avoid, resist, resolve or, if necessary, defend such suit or Action. Purchaser, US Purchaser, Seller and US Seller shall diligently assist and cooperate with one another in preparing and filing any and all written, material communications that are to be submitted to any Governmental Entities in connection with the transactions contemplated hereby and in obtaining any governmental or third party consents, waivers, authorizations or approvals that may be required to be obtained in connection with the transactions contemplated hereby, which assistance and cooperation shall include: (i) cooperate timely furnishing to each other all information that counsel reasonably determines is required to be included in such documents or would be helpful in obtaining such required consent, waiver, authorization or approval; (ii) promptly providing one another with copies of all written, material respects communications to or from any Governmental Entity; provided, that, such copies may be redacted as necessary to address legal privilege or confidentiality concerns or to comply with applicable Law and portions of such copies that are competitively sensitive may be designated as “outside counsel only”; (iii) providing each other in advance, with a reasonable opportunity for comment thereon, drafts of any written, material communication to be submitted to a Governmental Entity in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions transactions contemplated hereby; and (iiiv) keep the keeping each other party reasonably informed in all material respects and on a reasonably timely basis of any material communication received by such party or in any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent form from a Governmental Entity in connection with obtaining the Required Consentstransactions contemplated hereby. Without limiting Neither Purchaser or US Purchaser, on the foregoingone hand, (A) Parent OP and Parent REIT nor Seller or US Seller, on the other hand, shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lenderinitiate, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity with respect to any filings, applications, investigation, or other Person is commenced which questions inquiry regarding transactions contemplated by this Agreement without giving the validity or legality other Party reasonable prior notice of the Contemplated Transactions meeting or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding discussion and, if an injunction unless prohibited by the relevant Governmental Entity, the opportunity to attend and participate in such meeting or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionsdiscussion.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, including, but not waiverlimited to, the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the closing conditions precedent to consummating the Merger set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f))and, in exercising such reasonable efforts the case of Buyer, obtaining financing to obtain any consent, waiver or other accommodation (including consummate the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, transaction. Each party agrees to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, cooperate fully with each of the other parties hereto shall use its reasonable best efforts in assisting them to (i) cooperate in all material respects comply with each other in connection with obtaining any consentthe provisions of this Section, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity governmental body or other Person person is commenced which questions the validity or legality of the Contemplated Transactions Merger or seeks damages in connection therewith, each of the parties hereto agrees agree to cooperate and use their reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding and, if proceeding. If an injunction or other order is issued in any such action, suit or other proceeding, the parties agree to use their reasonable best efforts to have such injunction or other order lifted. Notwithstanding the foregoing, no party hereto shall be required to make any substantial payment or incur any material economic burden, other than a payment otherwise required of it, to obtain any consent, waiver, authorization order or approval, and if, despite its efforts, any party is unable to cooperate reasonably regarding obtain any material consent, waiver, authorization, order or approval, the other impediment parties for whose benefit the consent, waiver, authorization, order or approval is to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, be obtained may terminate this Agreement and shall not permit any of their respective controlled Affiliates tohave no liability therefor, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsexcept as is provided in Section 10.2.
Appears in 1 contract
Samples: Merger Agreement (Peebles Inc)
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use its reasonable efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, including, but not waiverlimited to, the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it in order to comply with the conditions precedent to consummating the transactions contemplated by this Agreement. Each party agrees to cooperate fully with each of the closing conditions set forth other parties in Article 8 and the entry into the Tax Matters Agreements, together assisting them to comply with the Member Guarantees provisions of this Section and Capital Contribution Agreements that are exhibits theretoSeller and X'Xxxxxxxx agree to take such steps as may be necessary to remove any liens, and charges, pledges, security interests or other encumbrances (other than Permitted Exceptions) which affect the New Company Agreement)Purchased Assets or the stock of the Canadian Subsidiary. Notwithstanding the foregoing foregoing, no party hereto shall be required to initiate any litigation, make any substantial payment or anything in this Agreement to the contrary incur any material economic burden (including the preceding sentence except for a payment otherwise then required of this Section 6.4(a) and Section 9.1(f)it), in exercising such reasonable efforts to remove a lien, charge, pledge, security interest or other encumbrance affecting any of the Purchased Assets or the Stock of the Canadian Subsidiary, or to obtain any consent, waiver waiver, authorization, order or approval, and if, despite its efforts, any party is unable to obtain any material consent, waiver, authorization, order of approval or to remove any lien, charge, pledge, security interest or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to encumbrance affecting any of the foregoing.
(b) Subject to Purchased Assets or the terms and conditions of this Agreement, each Stock of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consentCanadian Subsidiary, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to may terminate this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, Agreement and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionshave no liability therefor except as is provided in Section 12.2. 6.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall parties hereto agrees to use reasonable its good faith efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective consummate, as promptly as practicable the Contemplated Transactions (including, without limitationpracticable, the satisfactiontransactions contemplated hereby, but not waiverincluding the obtaining of all necessary consents, waivers, authorizations, orders and approvals of third parties, whether private or governmental, required of it to enable it to comply with the conditions precedent to consummating the transactions contemplated by this Agreement. Each party agrees to cooperate fully with the other party in assisting it to comply with this Section 5.11. Without limiting the generality of the closing conditions set forth foregoing, each party hereto shall defend and cooperate with each other party in Article 8 defending any legal proceedings, whether judicial or administrative and whether brought derivatively or on behalf of third parties, challenging this Agreement or the entry into consummation of the Tax Matters Agreementstransactions contemplated hereby. No consideration, together with whether such consideration shall consist of the Member Guarantees and Capital Contribution Agreements that are exhibits theretopayment of money or shall take any other form, and for any such consent, waiver or agreement necessary to the New consummation of the transactions contemplated hereby shall be given or promised by the Company Agreement)without the prior written approval of Buyer. Notwithstanding the foregoing foregoing, nothing contained herein shall require (a) any party hereto or anything any of their respective Affiliates to sell, transfer, divest or otherwise dispose of any of its respective business, assets or properties in connection with this Agreement or any of the transactions contemplated hereby, (b) Buyer to enter into any agreement or other arrangement for the contrary financing of the transactions contemplated hereby on terms that are not satisfactory to Buyer, in its sole discretion or (c) any party hereto to initiate any litigation, make any substantial payment or incur any material economic burden (including the preceding sentence as a result of this Section 6.4(a) and Section 9.1(f)any divestiture), in exercising such reasonable efforts except for payments a party presently is contractually obligated to make, to obtain any consent, waiver waiver, authorization, order or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoingapproval.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OP.
(c) Subject to the terms and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactions.
(d) Parent REIT, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactions.
Appears in 1 contract
Samples: Merger Agreement (Markel Corp)
Efforts to Consummate. (a) Subject During the period from the date hereof to the terms earlier of the Closing or the termination of this Agreement in accordance with Article IX, (A) the Parties, Xxxx and conditions herein provided, Xxxxxxxx each of Parent REIT, Parent OP, Parent Sub, the Company and the Contributors shall agree to use their respective commercially reasonable efforts (subject to takethose limitations set forth in the proviso to Section 6.3 below) to do (or cause to be done) all actions necessary, proper or advisable in order to cause the fulfillment of the conditions precedent to the obligations of the other Party hereto to consummate (and make effective) the Transactions as promptly as practicable, including (i) the execution and delivery of any documents, certificates, instruments or other papers that are reasonably required for the consummation of the Transactions and (ii) promptly as practicable making all registrations and filings with, and obtaining all necessary Consents from, all Governmental Authorities (including those in connection with the HSR Act) and taking all reasonable steps as may be necessary or advisable to obtain an approval or waiver from a Governmental Authority, and (B) Xxxx and Xxxxxxxx each shall as promptly as possible take (or cause to be taken, ) all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law in order to consummate and make effective as promptly as practicable (i) implement the Contemplated Transactions (including, without limitation, the satisfaction, but not waiver, of the closing conditions arrangements set forth on Exhibit E-1 and Exhibit E-2, (ii) agree to an Initial Budget and Business Plan in Article 8 accordance with Exhibit I and (iii) agree to the EnTrust Minimum Net Working Capital Amount and the entry into the Tax Matters Agreements, together Permal Minimum Net Working Capital Amount in accordance with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing or anything in this Agreement to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to any of the foregoing.Exhibit G.
(b) Subject At or immediately prior to the terms and conditions of this AgreementClosing, each of the parties hereto EnTrust Contributor shall, or shall use its reasonable best efforts to cause the EnTrust Entities to: (i) cooperate in all material respects with each other in connection with obtaining terminate the EnTrust Affiliate Contracts and arrangements set forth on Section 6.2(b) of the EnTrust Disclosure Schedule (provided that the EnTrust Entities and EP Partners shall not incur any consentLiabilities as a result of any such termination), waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed satisfy in full all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consents. Without limiting the foregoing, (A) Parent OP and Parent REIT shall be given no less than three (3) Business Days to review and comment on all materials or documents relating to this Transaction or any Closing Indebtedness of the parties hereto that is to be provided to any lender, servicer or agent in connection with obtaining a Required Consent and any such materials shall be revised to reflect any reasonable comments of Parent REIT and Parent OP with respect thereto and (B) the Group Companies and their representatives shall not engage or participate in any meeting or discussion or proposed discussion with any lender, servicer or agent for the purpose of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPEnTrust Entities.
(c) Subject At or immediately prior to the terms Closing, the Permal Contributor shall, or shall cause the Permal Entities to: (i) terminate the Permal Affiliate Contracts and conditions herein provided, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality arrangements set forth on Section 6.2(c) of the Contemplated Transactions or seeks damages Permal Disclosure Schedule (provided that the Permal Entities and the Company shall not incur any Liabilities as a result of any such termination), and (ii) satisfy in connection therewith, each full all Closing Indebtedness of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated TransactionsPermal Entities.
(d) Parent REITPrior to the Closing, Parent OP and Parent Sub shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent each of the RepresentativeEnTrust Contributor and the Permal Contributor shall use commercially reasonable efforts to provide to the other party at least three days prior to the Closing (or as soon as reasonably practicable thereafter) the EnTrust Payoff Letters and the Permal Payoff Letters, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or the Contemplated Transactionsrespectively.
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Efforts to Consummate. (a) Subject to the terms and conditions herein provided, each of Parent REIT, Parent OP, Parent Subthis Agreement, the Company and the Contributors shall parties agree (i) to use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the Contemplated Transactions transactions contemplated by this Agreement, (includingii) to execute any documents, without limitation, the satisfaction, but not waiver, instruments or conveyances of the closing conditions set forth in Article 8 and the entry into the Tax Matters Agreements, together with the Member Guarantees and Capital Contribution Agreements that are exhibits thereto, and the New Company Agreement). Notwithstanding the foregoing any kind which may be reasonably necessary or anything in this Agreement advisable to the contrary (including the preceding sentence of this Section 6.4(a) and Section 9.1(f)), in exercising such reasonable efforts to obtain any consent, waiver or other accommodation (including the Required Consents) from any Person that is not a Governmental Entity, none of the Group Companies, the Contributors, Parent REIT, Parent OP, Parent Sub, or any of their respective Affiliates, shall be obligated, except as otherwise provided in Annex E or Section 6.4(c) or Section 6.5, to incur any liability, commence or threaten to commence any litigation, agree to any amendment to this Agreement or any other Transaction Document, make any payment (other than to attorneys, accountants and other advisors), offer or grant any accommodation (financial or otherwise) or agree or commit to carry out any of the foregoing.
transactions contemplated hereunder, and (biii) Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all material respects with each other in connection with obtaining any consent, waiver or other accommodation (including the Required Consents) from any Person as may be necessary or desirable to obtain any consent, waivers or approvals required to consummate the Contemplated Transactions and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party or any of its Affiliates from, or given by such party or any of its Affiliates to, any lender, servicer or agent in connection with obtaining the Required Consentsforegoing. Without limiting the foregoing, the parties agree to use their respective reasonable efforts (A) Parent OP to obtain all necessary waivers, consents and Parent REIT approvals from any Person; PROVIDED, HOWEVER that neither the Corporation nor Newco shall be given no less than three (3) Business Days required to review and comment on all materials make any payments, commence litigation or documents relating agree to this Transaction or any modifications of the parties hereto that is terms of any Contracts in order to obtain any such waivers, consents or approvals, (B) to obtain all necessary Permits as are required to be provided obtained under any Applicable Law, (C) to any lendergive all notices to, servicer or agent and make all registrations and filings with third parties, including without limitation submissions of information requested by Governmental Entities, (D) to reasonably cooperate with all potential sources of financing to the Corporation in connection with obtaining a Required Consent the Merger, and the other transactions contemplated by this Agreement, and to take all reasonable steps as may be necessary or advisable to consummate one or more financing transactions with such potential sources of financing, (E) to the extent necessary to obtain recapitalization accounting treatment of the Merger, taking reasonable actions to restructure the transactions contemplated by this Agreement; PROVIDED that the Corporation will not be required to take any action that, in the Corporation's reasonable discretion, may materially delay the consummation of the Merger or may adversely affect the Cash Merger Price, the Preferred Merger Price, the Taxes payable by any holder of the Corporation's Common Stock or the risk of liability to any such holder and (F) to cause all conditions to this Agreement to be satisfied; PROVIDED, HOWEVER that neither the Corporation nor Newco shall be required to make any payments or commence litigation in connection therewith.
(b) Each of the Corporation and Newco shall, as promptly as practicable, but in no event later than ten Business Days following the execution and delivery of this Agreement, file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report form, if any, required for the transactions contemplated hereby and any supplemental information requested in connection therewith pursuant to the HSR Act. Any such materials notification and report form and supplemental information shall be revised in substantial compliance with the requirements of the HSR Act. Each of Newco and the Corporation shall furnish to reflect the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any reasonable comments filing or submission that is necessary under the HSR Act. The Corporation and Newco shall keep each other apprised of Parent REIT the status of any communications with, and Parent OP with respect thereto any inquiries or requests for additional information from, the FTC and (B) the Group Companies DOJ and their representatives shall not engage or participate in any meeting or discussion or proposed discussion comply promptly with any lender, servicer such inquiry or agent request. Each of the Corporation and Newco shall use its reasonable efforts to obtain any clearance required under the HSR Act for the purpose consummation of discussing the Contemplated Transactions or the Required Consents without the participation of Parent REIT or Parent OP and their advisors and representatives and all such meetings and discussions will be scheduled to take place at times and locations that are reasonably convenient for Parent REIT and Parent OPtransactions contemplated by this Agreement.
(c) Subject Without limiting the foregoing, Newco shall use its commercially reasonable best efforts to obtain the requisite funds for the consummation of the transactions contemplated hereby, including the Merger, the Debt Offers (or the defeasance of the Senior Subordinated Notes and the redemption of the FIRSTS), and to pay the related fees and expenses, on substantially the terms and conditions herein provided, set forth in the event any claim, action, suit, investigation Financing Commitments or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Contemplated Transactions or seeks damages in connection therewith, each of the parties hereto agrees to cooperate and use reasonable efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Contemplated Transactionson substantially comparable terms.
(d) Parent REITWithout limiting the foregoing, Parent OP and Parent Sub the Corporation shall not, and shall not permit any of their respective controlled Affiliates to, without the prior written consent defease all of the Representative, enter into any merger, acquisition, joint venture or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation outstanding Senior Subordinated Notes and redeem all of the outstanding FIRSTS at the Effective Time to the extent that the Debt Offer with respect to such Existing Notes has not been consummated, in each case, with the proceeds from the Financing or the Contemplated TransactionsCommitments.
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