Efforts to Obtain Funding. (a) Parent shall use reasonable best efforts to obtain the Financing as promptly as practical and, in any event, not later than the date the Closing is required to be effected in accordance with Section 4.1, on the terms and subject to the conditions described in the Commitment Letter (including the “flex” provisions of the related fee letter), including using its reasonable best efforts to: (i) maintain in effect the Commitment Letter and negotiate in good faith and enter into as promptly as practicable definitive agreements (the “Definitive Financing Agreements”) with respect to the Financing (on the terms and subject to the conditions reflected in the Commitment Letter (including the “flex” provisions of the related fee letter), provided that such terms do not contain any conditions to funding that are not set forth in the Commitment Letter and otherwise would not reasonably be expected to prevent, impair or delay the Closing); (ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be complied with or satisfied by Parent in the Commitment Letter (including the “flex” provisions of the related fee letter) and in such Definitive Financing Agreements; (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent to satisfy its obligations under this Agreement; (iv) pay in a timely manner any and all commitment or other fees that become payable by Buyer or Parent under the Commitment Letter on or following the date hereof; and (v) enforce its rights under the Commitment Letter or the Definitive Financing Agreements, as applicable. In the event that all conditions to funding contained in the Commitment Letter have been satisfied, Parent shall use its reasonable best efforts to cause the lenders under the Commitment Letters to fund the Financing on the date the Closing is required to occur pursuant to Section 4.1 (without giving effect to the first proviso therein). Parent shall not, without the prior written consent of Seller, amend, replace, supplement or otherwise modify the Commitment Letter or the Definitive Financing Agreements, as applicable, in any manner (including by way of a side letter or other binding agreement, arrangement or understanding) in a way that would (A) add new, or expand any existing, conditions to the consummation of all or a portion of the Financing, (B) reduce the amount of the Financing, (C) adversely affect the ability of Parent or Buyer to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (D) reasonably be expected to prevent, impede or materially delay the consummation of the Contemplated Transactions or otherwise adversely affect the ability or likelihood of Buyer to timely consummate the Contemplated Transactions or make the satisfaction of the conditions to obtaining the Financing less likely to occur. Parent shall not release or consent to the termination of the obligations of any of the parties under the Commitment Letter or the Definitive Financing Agreements. (b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (including the “flex” provisions of the related fee letter) for any reason or the Commitment Letter shall be terminated or modified in a manner adverse to Seller for any reason, Parent shall use reasonable best efforts to obtain, as promptly as practicable, and in any event no later than three business days prior to the date the Closing is required to occur pursuant to Section 4.1, from the same or alternative financing sources, alternative financing on terms not less favorable (including, for the avoidance of doubt, (1) all conditions precedent and contingencies to funding of such financing being in the aggregate, in respect of certainty of funding, equivalent to (or more favorable to Parent than) the conditions precedent and contingencies set forth in the Commitment Letter (prior to such Alternative Financing) and (2) such substitution not (x) delaying or preventing the Closing, (y) adversely impacting the likelihood of the funding of the Financing or (z) adversely impacting the ability of Parent or Buyer to enforce its rights against the other parties to the Commitment Letter or the Definitive Financing Agreements or the ability of Parent or Buyer to timely consummate the transactions contemplated hereby) to Parent than the terms of the Financing in an amount equal to the lesser of (i) an amount sufficient to consummate the transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent), and (ii) the amount of financing that was contemplated by the Commitment Letter on the date hereof. In the event any alternative or substitute financing is obtained by Parent in accordance with the terms of this Section 7.6(b) (the “Alternative Financing”), references herein to the Financing (including, for avoidance of doubt, the references in this Section 7.6, but excluding references in Section 6.4) shall be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing, references herein to the Commitment Letter (including, for avoidance of doubt, the references in this Section 7.6, but excluding the references in Section 6.4) shall be deemed to refer to the new financing commitment letter entered into in connection with the Alternative Financing and any references to the fee letters shall refer to the new fee letters entered into in connection with the Alternative Financing. (c) Parent and Buyer each acknowledges and agrees that obtaining the Financing is not a condition to its obligations to consummate the Contemplated Transactions. (d) Buyer shall promptly (i) reimburse Seller for all documented reasonable third-party out-of-pocket costs and expenses (including reasonable attorneys’ and accountants fees’) incurred by Seller or any of its Affiliates in connection with their cooperation with Buyer in its efforts to obtain the Financing and (ii) indemnify and hold harmless the Companies and their Affiliates for and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing or any information used in connection therewith (other than information provided by the Seller or any of its Affiliates) and all actions taken by the Companies or their respective Affiliates pursuant to this Section 7.6. (e) Prior to the Closing, Seller shall cause the Companies to use their reasonable best efforts to, at Parent’s and Buyer’s sole expense, provide all customary cooperation reasonably requested by Parent in connection with Parent arranging the Financing, including, if requested by Parent, using reasonable best efforts to (i) assist with the preparation of customary offering and syndication documents and materials, including lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing, (ii) have the Companies designate a member of senior management of the Companies to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Companies and the Financing Sources and potential lenders in the Financing, (iii) assist Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Commitment Letters, (iv) assist in the preparation of definitive financing documents, including guarantee documents and other certificates and documents as may be reasonably requested by Parent, (v) obtain from the Companies’ existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Financing, if applicable and taking corporate actions reasonably requested by Parent to permit the consummation of the Financing provided that they are contingent on the completion of the Financing, (vi) obtain from the Companies’ existing banking lenders customary payoff letters, lien releases, instruments of termination or discharge, if applicable, (vii) provide assistance with respect to the review and grant of any security interests in and/or pledging of collateral for and providing of guarantees supporting the Financing and obtaining any consents associated therewith, (viii) provide Parent with any financial statements of the Companies required to be provided pursuant to this Agreement, and (ix) provide, no later than four business days prior to Closing, all documentation and other information as has been reasonably requested in writing at least 10 business days prior to Closing by the Financing Sources that they reasonable determine is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act. (f) For the avoidance of doubt and notwithstanding anything herein to the contrary, (i) nothing herein shall require such cooperation to the extent it would unreasonably interfere in any material respect with the business or operations of either of the Companies or their Affiliates or require either of the Companies or their Affiliates to agree to pay any fees, reimburse any expenses, incur any Liability, in each case, that is not indemnified by or subject to reimbursement by the Parent or Buyer, or give any indemnities (other than with respect to customary “representation and authorization letters” in connection with the Offering Documents); (ii) the Companies shall not be required to enter into (or approve) any definitive agreement related to any proposed Financing, (iii) the Companies and their Affiliates shall not be required to take any action that would require any director, officer or employee of any Company or any of their Affiliates to execute, or be required to enter into, or adopt any resolutions approving, any document, agreement, certificate or instrument (provided, that the Companies shall cooperate with the Buyer to appoint Buyer's designees to the respective boards of directors (or equivalent bodies) of the Companies as of Closing for purposes of approving resolutions, the effectiveness of which is to be conditioned upon the Closing, related to the Financing), (iv) nothing herein shall require either of the Companies or their Affiliates to cause the delivery of legal opinions, reliance letters or certificates; and (v) neither Company or any of their Affiliates shall be required to take any action that conflicts with or violates their respective organizational documents, any applicable Law or Business Agreement or provide in connection with the Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged. Notwithstanding anything to the contrary herein, the condition set forth in Section 9.1(a), as it applies to the Seller’s obligations under this Section 7.6(f), shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller’s willful and material breach of its obligations under this Section 7.6(f) with respect to the Financing.
Appears in 1 contract
Efforts to Obtain Funding. (a) Parent shall use reasonable best efforts to obtain the Financing as promptly as practical and, in any event, not later than the date the Closing is required to be effected in accordance with Section 4.1, on the terms and subject to the conditions described in the Commitment Letter (including the “flex” provisions of the related fee letter), including using its reasonable best efforts to: (i) maintain in effect the Commitment Letter and negotiate in good faith and enter into as promptly as practicable definitive agreements (the “Definitive Financing Agreements”) with respect to the Financing (on the terms and subject to the conditions reflected in the Commitment Letter (including the “flex” provisions of the related fee letter), provided that such terms do not contain any conditions to funding that are not set forth in the Commitment Letter and otherwise would not reasonably be expected to prevent, impair or delay the Closing); (ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be complied with or satisfied by Parent in the Commitment Letter (including the “flex” provisions of the related fee letter) and in such Definitive Financing Agreements; (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent to satisfy its obligations under this Agreement; (iv) pay in a timely manner any and all commitment or other fees that become payable by Buyer or Parent under the Commitment Letter on or following the date hereof; and (v) enforce its rights under the Commitment Letter or the Definitive Financing Agreements, as applicable. In the event that all conditions to funding contained in the Commitment Letter have been satisfied, Parent shall use its reasonable best efforts to cause the lenders under the Commitment Letters to fund the Financing on the date the Closing is required to occur pursuant to Section 4.1 (without giving effect to the first proviso therein). Parent shall not, without the prior written consent of Seller, amend, replace, supplement or otherwise modify the Commitment Letter or the Definitive Financing Agreements, as applicable, in any manner (including by way of a side letter or other binding agreement, arrangement or understanding) in a way that would (A) add new, or expand any existing, conditions to the consummation of all or a portion of the Financing, (B) reduce the amount of the Financing, (C) adversely affect the ability of Parent or Buyer to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (D) reasonably be expected to prevent, impede or materially delay the consummation of the Contemplated Transactions or otherwise adversely affect the ability or likelihood of Buyer to timely consummate the Contemplated Transactions or make the satisfaction of the conditions to obtaining the Financing less likely to occur. Parent shall not release or consent to the termination of the obligations of any of the parties under the Commitment Letter or the Definitive Financing Agreements.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (including the “flex” provisions of the related fee letter) for any reason or the Commitment Letter shall be terminated or modified in a manner adverse to Seller for any reason, Parent shall use reasonable best efforts to obtain, as promptly as practicable, and in any event no later than three business days prior to the date the Closing is required to occur pursuant to Section 4.1, from the same or alternative financing sources, alternative financing on terms not less favorable (including, for the avoidance of doubt, (1) all conditions precedent and contingencies to funding of such financing being in the aggregate, in respect of certainty of funding, equivalent to (or more favorable to Parent than) the conditions precedent and contingencies set forth in the Commitment Letter (prior to such Alternative Financing) and (2) such substitution not (x) delaying or preventing the Closing, (y) adversely impacting the likelihood of the funding of the Financing or (z) adversely impacting the ability of Parent or Buyer to enforce its rights against the other parties to the Commitment Letter or the Definitive Financing Agreements or the ability of Parent or Buyer to timely consummate the transactions contemplated hereby) to Parent than the terms of the Financing in an amount equal to the lesser of (i) an amount sufficient to consummate the transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent), and (ii) the amount of financing that was contemplated by the Commitment Letter on the date hereof. In the event any alternative or substitute financing is obtained by Parent in accordance with the terms of this Section 7.6(b) (the “Alternative Financing”), references herein to the Financing (including, for avoidance of doubt, the references in this Section 7.6, but excluding references in Section 6.4) shall be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing, references herein to the Commitment Letter (including, for avoidance of doubt, the references in this Section 7.6, but excluding the references in Section 6.4) shall be deemed to refer to the new financing commitment letter entered into in connection with the Alternative Financing and any references to the fee letters shall refer to the new fee letters entered into in connection with the Alternative Financing.
(c) Parent and Buyer each acknowledges and agrees that obtaining the Financing is not a condition to its obligations to consummate the Contemplated Transactions.
(d) Buyer shall promptly (i) reimburse Seller for all documented reasonable third-party out-of-pocket costs and expenses (including reasonable attorneys’ and accountants fees’) incurred by Seller or any of its Affiliates in connection with their cooperation with Buyer in its efforts to obtain the Financing and (ii) indemnify and hold harmless the Companies and their Affiliates for and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing or any information used in connection therewith (other than information provided by the Seller or any of its Affiliates) and all actions taken by the Companies or their respective Affiliates pursuant to this Section 7.6.
(e) Prior to the Closing, Seller shall cause the Companies to use their reasonable best efforts to, at Parent’s and Buyer’s sole expense, provide all customary cooperation reasonably requested by Parent in connection with Parent arranging the Financing, including, if requested by Parent, using reasonable best efforts to (i) assist with the preparation of customary offering and syndication documents and materials, including lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing, (ii) have the Companies designate a member of senior management of the Companies to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Companies and the Financing Sources and potential lenders in the Financing, (iii) assist Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Commitment Letters, (iv) assist in the preparation of definitive financing documents, including guarantee documents and other certificates and documents as may be reasonably requested by Parent, (v) obtain from the Companies’ existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Financing, if applicable and taking corporate actions reasonably requested by Parent to permit the consummation of the Financing provided that they are contingent on the completion of the Financing, (vi) obtain from the Companies’ existing banking lenders customary payoff letters, lien releases, instruments of termination or discharge, if applicable, (vii) provide assistance with respect to the review and grant of any security interests in and/or pledging of collateral for and providing of guarantees supporting the Financing and obtaining any consents associated therewith, (viii) provide Parent with any financial statements of the Companies required to be provided pursuant to this Agreement, and (ix) provide, no later than four business days prior to Closing, all documentation and other information as has been reasonably requested in writing at least 10 business days prior to Closing by the Financing Sources that they reasonable determine is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(f) For the avoidance of doubt and notwithstanding anything herein to the contrary, (i) nothing herein shall require such cooperation to the extent it would unreasonably interfere in any material respect with the business or operations of either of the Companies or their Affiliates or require either of the Companies or their Affiliates to agree to pay any fees, reimburse any expenses, incur any Liability, in each case, that is not indemnified by or subject to reimbursement by the Parent or Buyer, or give any indemnities (other than with respect to customary “representation and authorization letters” in connection with the Offering Documents); (ii) the Companies shall not be required to enter into (or approve) any definitive agreement related to any proposed Financing, (iii) the Companies and their Affiliates shall not be required to take any action that would require any director, officer or employee of any Company or any of their Affiliates to execute, or be required to enter into, or adopt any resolutions approving, any document, agreement, certificate or instrument (provided, that the Companies shall cooperate with the Buyer to appoint Buyer's designees to the respective boards of directors (or equivalent bodies) of the Companies as of Closing for purposes of approving resolutions, the effectiveness of which is to be conditioned upon the Closing, related to the Financing), (iv) nothing herein shall require either of the Companies or their Affiliates to cause the delivery of legal opinions, reliance letters or certificates; and (v) neither Company or any of their Affiliates shall be required to take any action that conflicts with or violates their respective organizational documents, any applicable Law or Business Agreement or provide in connection with the Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged. Notwithstanding anything to the contrary herein, the condition set forth in Section 9.1(a), as it applies to the Seller’s obligations under this Section 7.6(f), shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller’s willful and material breach of its obligations under this Section 7.6(f) with respect to the Financing.in
Appears in 1 contract
Efforts to Obtain Funding. (a) Parent Subject to the terms and conditions of this Agreement, Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing on the terms and conditions applicable to Buyer within its control described in the Commitment Letter in a timely manner including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letter in accordance with its terms, (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions (including any flex provisions set forth in the fee letter) not less favorable, in all material respects and taken as a whole, to Buyer, than those contained therein as promptly as practicable after the date hereof, (iii) comply with all covenants and obligations applicable to Buyer in the Commitment Letter and any definitive agreements with respect thereto, and (iv) satisfy on a timely basis (or obtain a waiver of) all conditions applicable to Buyer in such definitive agreements (but excluding in any event any condition where the failure to satisfy is a direct result of the Company’s failure to provide the information and assistance set forth in Section 6.11). If at any time it becomes reasonably likely that Buyer will be unable for any reason to consummate the Financing on the terms set forth in, or on terms not materially less favorable to Buyer than those in, the Commitment Letter, Buyer shall use its reasonable best efforts to obtain the Financing replacement financing on terms not less favorable in all material respects and taken as a whole, including from alternate sources, as promptly as practical and, in any practicable after the occurrence of such event, not later than .
(b) Without limiting the date the Closing is required to be effected in accordance with Section 4.1, on the terms and subject to the conditions described in the Commitment Letter (including the “flex” provisions generality of the related fee letter)obligations set forth in subsection (a) above, including using Buyer shall use its reasonable best efforts to: (i) maintain in effect the Commitment Letter and negotiate in good faith and enter into as promptly as practicable definitive agreements (the “Definitive Financing Agreements”) with respect to the Financing (on the terms and subject to the conditions reflected in the Commitment Letter (including the “flex” provisions of the related fee letter), provided that such terms do not contain any conditions to funding that are not set forth in the Commitment Letter and otherwise would not reasonably be expected to prevent, impair or delay the Closing); (ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be complied with or satisfied by Parent in the Commitment Letter (including the “flex” provisions of the related fee letter) and in such Definitive Financing Agreements; (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent to satisfy its obligations under this Agreement; (iv) pay in a timely manner any and all commitment or other fees that become payable by Buyer or Parent under the Commitment Letter on or following the date hereof; and (v) enforce its rights under the Commitment Letter or the Definitive Financing Agreements, as applicable. In the event that all conditions to funding contained in the Commitment Letter have been satisfied, Parent shall use its reasonable best efforts to cause its representatives to, deliver all documents and instruments reasonably necessary to satisfy the lenders under conditions set forth in the Commitment Letters to fund Letter and assist with the Financing on syndication or marketing of the date financing contemplated thereby.
(c) Buyer shall not amend, restate, supplement or otherwise modify or waive any provision in the Closing is required to occur pursuant to Section 4.1 (without giving effect to the first proviso therein). Parent shall not, Commitment Letter without the prior written consent of Sellerthe Members’ Representative, amendif such amendment, replace, supplement modification or otherwise modify the Commitment Letter or the Definitive Financing Agreements, as applicable, in any manner (including by way of a side letter or other binding agreement, arrangement or understanding) in a way that would waiver (A) add new, or expand any existing, conditions to reduces the consummation of all or a portion aggregate amount of the Financing, (B) reduce imposes additional conditions precedent to the amount availability of the Financing, (C) adversely affect the ability of Parent or Buyer to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (D) in a manner that would reasonably be expected to prevent, impede or materially delay the consummation of the Contemplated Transactions or otherwise adversely affect the ability or likelihood of Buyer to timely consummate the Contemplated Transactions or make the satisfaction of the conditions to obtaining the Financing less likely to occur. Parent shall not release or consent to the termination of the obligations of any of the parties under the Commitment Letter or the Definitive Financing Agreements.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (including the “flex” provisions of the related fee letter) for any reason or the Commitment Letter shall be terminated or modified in a manner adverse to Seller for any reason, Parent shall use reasonable best efforts to obtain, as promptly as practicable, and in any event no later than three business days prior to the date the Closing is required to occur pursuant to Section 4.1, from the same or alternative financing sources, alternative financing on terms not less favorable (including, for the avoidance of doubt, (1) all conditions precedent and contingencies to funding of such financing being in the aggregate, in respect of certainty of funding, equivalent to (or more favorable to Parent than) the conditions precedent and contingencies set forth in the Commitment Letter (prior to such Alternative Financing) and (2) such substitution not (x) delaying or preventing the Closing, (y) adversely impacting the likelihood of prevent the funding of the Financing on the Closing Date, or (zC) materially adversely impacting affects the ability of Parent or Buyer to enforce its rights against the other parties to the Commitment Letter or the Definitive Financing Agreements or the ability of Parent or Buyer to timely consummate the transactions contemplated hereby) to Parent than the terms of the Financing in an amount equal to the lesser of (i) an amount sufficient to consummate the transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent), and (ii) the amount of financing that was contemplated by the Commitment Letter on the date hereof. In the event any alternative or substitute financing is obtained by Parent in accordance with the terms of this Section 7.6(b) (the “Alternative Financing”), references herein to the Financing (including, for avoidance of doubt, the references in this Section 7.6, but excluding references in Section 6.4) shall be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing, references herein to the Commitment Letter (including, for avoidance of doubt, the references in this Section 7.6, but excluding the references in Section 6.4) shall be deemed to refer to the new financing commitment letter entered into in connection with the Alternative Financing and any references to the fee letters shall refer to the new fee letters entered into in connection with the Alternative Financing.
(c) Parent and Buyer each acknowledges and agrees that obtaining the Financing is not a condition to its obligations to consummate the Contemplated Transactions.
(d) . Buyer shall promptly (i) reimburse Seller for all documented keep the Company and the Members’ Representative reasonably informed on a reasonably current basis in reasonable third-party out-of-pocket costs and expenses (including reasonable attorneys’ and accountants fees’) incurred by Seller or any detail of its Affiliates in connection with their cooperation with Buyer in the status of its efforts to obtain arrange the Financing and (ii) indemnify and hold harmless the Companies and their Affiliates for and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing or any information used in connection therewith (other than information provided by the Seller or any of its Affiliates) and all actions taken by the Companies or their respective Affiliates pursuant to this Section 7.6.
(e) Prior to the Closing, Seller shall cause the Companies to use their reasonable best efforts to, at Parent’s and Buyer’s sole expense, provide all customary cooperation reasonably requested by Parent in connection with Parent arranging the Financing, including, if requested by Parent, using reasonable best efforts to (i) assist with the preparation of customary offering and syndication documents and materials, including lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing, (ii) have the Companies designate a member of senior management of the Companies to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Companies and the Financing Sources and potential lenders in the Financing, (iii) assist Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Commitment Letters, (iv) assist in the preparation of definitive financing documents, including guarantee documents and other certificates and documents as may be reasonably requested by Parent, (v) obtain from the Companies’ existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Financing, if applicable and taking corporate actions reasonably requested by Parent to permit the consummation of the Financing provided that they are contingent on the completion of the Financing, (vi) obtain from the Companies’ existing banking lenders customary payoff letters, lien releases, instruments of termination or dischargereplacement financing, if applicable, (vii) provide assistance with respect to the review and grant of any security interests in and/or pledging of collateral for and providing of guarantees supporting the Financing and obtaining any consents associated therewith, (viii) provide Parent with any financial statements of the Companies required to be provided pursuant to this Agreement, and (ix) provide, no later than four business days prior to Closing, all documentation and other information as has been reasonably requested in writing at least 10 business days prior to Closing by the Financing Sources that they reasonable determine is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(f) For the avoidance of doubt and notwithstanding anything herein to the contrary, (i) nothing herein shall require such cooperation to the extent it would unreasonably interfere in any material respect with the business or operations of either of the Companies or their Affiliates or require either of the Companies or their Affiliates to agree to pay any fees, reimburse any expenses, incur any Liability, in each case, that is not indemnified by or subject to reimbursement by the Parent or Buyer, or give any indemnities (other than with respect to customary “representation and authorization letters” in connection with the Offering Documents); (ii) the Companies shall not be required to enter into (or approve) any definitive agreement related to any proposed Financing, (iii) the Companies and their Affiliates shall not be required to take any action that would require any director, officer or employee of any Company or any of their Affiliates to execute, or be required to enter into, or adopt any resolutions approving, any document, agreement, certificate or instrument (provided, that the Companies shall cooperate with the Buyer to appoint Buyer's designees to the respective boards of directors (or equivalent bodies) of the Companies as of Closing for purposes of approving resolutions, the effectiveness of which is to be conditioned upon the Closing, related to the Financing), (iv) nothing herein shall require either of the Companies or their Affiliates to cause the delivery of legal opinions, reliance letters or certificates; and (v) neither Company or any of their Affiliates shall be required to take any action that conflicts with or violates their respective organizational documents, any applicable Law or Business Agreement or provide in connection with the Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged. Notwithstanding anything to the contrary herein, the condition set forth in Section 9.1(a), as it applies to the Seller’s obligations under this Section 7.6(f), shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller’s willful and material breach of its obligations under this Section 7.6(f) with respect to the Financing.
Appears in 1 contract
Samples: Purchase Agreement (Victory Capital Holdings, Inc.)
Efforts to Obtain Funding. (a) Parent Buyer shall use its commercially reasonable best efforts to obtain the Financing as promptly as practical and, in any event, not later than the date sufficient to effect the Closing is required on a targeted date of November 15, 2006. If at any time it becomes reasonably likely that Buyer will be unable for any reason to be effected in accordance with Section 4.1, consummate the Financing on the terms and subject to the conditions described in the Commitment Letter (including the “flex” provisions of the related fee letter), including using its reasonable best efforts to: (i) maintain in effect the Commitment Letter and negotiate in good faith and enter into as promptly as practicable definitive agreements (the “Definitive Financing Agreements”) with respect to the Financing (on the terms and subject to the conditions reflected in the Commitment Letter (including the “flex” provisions of the related fee letter), provided that such terms do not contain any conditions to funding that are not set forth in the Commitment Letter and otherwise would not reasonably be expected to prevent, impair or delay the Closing); (ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be complied with or satisfied by Parent in the Commitment Letter (including the “flex” provisions of the related fee letter) and in such Definitive Financing Agreements; (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent to satisfy its obligations under this Agreement; (iv) pay in a timely manner any and all commitment or other fees that become payable by Buyer or Parent under the Commitment Letter on or following the date hereof; and (v) enforce its rights under the Equity Commitment Letter or the Definitive Financing AgreementsDebt Commitment Letter, as applicable. In the event that all conditions to funding contained in the Commitment Letter have been satisfied, Parent Buyer shall use its commercially reasonable best efforts to obtain replacement financing, provided that Buyer shall not be required to accept terms that are materially less favorable in the aggregate to the Buyer than those set forth in the Equity Commitment Letter and the Debt Commitment Letter. For the avoidance of doubt, a decision by the Buyer to begin the process of marketing the Financing after it has had a reasonable opportunity to incorporate the Company’s financial statements for the periods ending September 30, 2006 shall be deemed to be commercially reasonable.
(b) Without limiting the generality of the obligations set forth in subsection (a) above, but subject to the last sentence thereof Buyer shall use its commercially reasonable efforts to cause the lenders under conditions which are set forth in the Equity Commitment Letters Letter and the Debt Commitment Letter to fund be fulfilled in accordance with their terms as soon as reasonably practicable. Buyer shall use its commercially reasonable efforts to, and shall use its commercially reasonable efforts to cause its representatives to, deliver all documents and instruments reasonably necessary to satisfy the Financing on conditions set forth in the date Equity Commitment Letter and the Closing is required to occur pursuant to Section 4.1 Debt Commitment Letter and assist with the syndication or marketing of the financing contemplated thereby.
(without giving effect c) Buyer shall not amend, modify or change any provision in either the Equity Commitment Letter or the Debt Commitment Letter in any respect adverse to the first proviso therein). Parent shall not, Company without the prior written consent of Sellerthe Company, amend, replace, supplement such consent not to be unreasonably withheld or otherwise modify delayed (it being understood that the Buyer may agree to amend the Debt Commitment Letter or to provide for the Definitive Financing Agreements, as applicable, in any manner (including by way assignment of a side letter or other binding agreement, arrangement or understanding) in a way that would (A) add new, or expand any existing, conditions to the consummation of all or a portion of the Financingdebt commitment to additional agents or arrangers and, (B) reduce the amount of the Financing, (C) adversely affect the ability of Parent or Buyer to enforce its rights against other parties without adding any additional conditions to the Debt Commitment Letter, granting such persons approval rights with respect to certain matters as are customarily granted to additional agents or arrangers), and Buyer shall draw down on the financings referred to in the Equity Commitment Letter or and the Definitive Financing Agreements, or (D) reasonably be expected to prevent, impede or materially delay the consummation of the Contemplated Transactions or otherwise adversely affect the ability or likelihood of Buyer to timely consummate the Contemplated Transactions or make the satisfaction of Debt Commitment Letter when the conditions to obtaining the Financing less likely to occur. Parent shall not release or consent to the termination of the obligations of any of the parties under the Commitment Letter or the Definitive Financing Agreements.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (including the “flex” provisions of the related fee letter) for any reason or the Commitment Letter shall be terminated or modified in a manner adverse to Seller for any reason, Parent shall use reasonable best efforts to obtain, as promptly as practicable, and in any event no later than three business days prior to the date the Closing is required to occur pursuant to Section 4.1, from the same or alternative financing sources, alternative financing on terms not less favorable (including, for the avoidance of doubt, (1) all conditions precedent and contingencies to funding of such financing being in the aggregate, in respect of certainty of funding, equivalent to (or more favorable to Parent than) the conditions precedent and contingencies set forth in the Equity Commitment Letter (prior to such Alternative Financing) and (2) such substitution not (x) delaying or preventing the Closing, (y) adversely impacting the likelihood of the funding of the Financing or (z) adversely impacting the ability of Parent or Buyer to enforce its rights against the other parties to the Debt Commitment Letter or the Definitive Financing Agreements or the ability of Parent or Buyer to timely consummate the transactions contemplated hereby) to Parent than the terms of the Financing in an amount equal to the lesser of (i) an amount sufficient to consummate the transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent), and (ii) the amount of financing that was contemplated by the Commitment Letter on the date hereof. In the event any alternative or substitute financing is obtained by Parent in accordance with the terms of this Section 7.6(b) (the “Alternative Financing”), references herein to the Financing (including, for avoidance of doubt, the references in this Section 7.6, but excluding references in Section 6.4) shall be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing, references herein to the Commitment Letter (including, for avoidance of doubt, the references in this Section 7.6, but excluding the references in Section 6.4) shall be deemed to refer to the new financing commitment letter entered into in connection with the Alternative Financing and any references to the fee letters shall refer to the new fee letters entered into in connection with the Alternative Financing.
(c) Parent and Buyer each acknowledges and agrees that obtaining the Financing is not a condition to its obligations to consummate the Contemplated Transactionsare satisfied.
(d) Buyer The Company agrees to provide, and shall promptly (i) reimburse Seller for cause the Subsidiaries to provide, all documented reasonable third-party out-of-pocket costs and expenses cooperation (including reasonable attorneys’ and accountants fees’with respect to timeliness) incurred by Seller or any of its Affiliates in connection with their cooperation with Buyer in its efforts to obtain the Financing and (ii) indemnify and hold harmless the Companies and their Affiliates for and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing or any information used in connection therewith (other than information provided by the Seller or any of its Affiliates) and all actions taken by the Companies or their respective Affiliates pursuant to this Section 7.6.
(e) Prior to the Closing, Seller shall cause the Companies to use their reasonable best efforts to, at Parent’s and Buyer’s sole expense, provide all customary cooperation reasonably requested by Parent in connection with Parent arranging the Financing, including, if requested by Parent, using reasonable best efforts to (i) assist with the preparation of customary offering and syndication documents and materials, including lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing, (ii) have the Companies designate a member of senior management of the Companies to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Companies and the Financing Sources and potential lenders in the Financing, (iii) assist Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Commitment Letters, (iv) assist in the preparation of definitive financing documents, including guarantee documents and other certificates and documents as may be reasonably requested by ParentBuyer (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Subsidiaries), including (i) participation in meetings, drafting sessions and due diligence sessions, (vii) obtain from furnishing Buyer and its financing sources with financial and other pertinent information regarding the Companies’ existing lenders such consents, approvals, authorizations and instruments which Company as may be reasonably requested by Parent Buyer, (iii) satisfying the conditions set forth in connection the Debt Commitment Letter (to the extent the satisfaction of such conditions requires actions by or cooperation of the Company), (iv) assisting Buyer and its financing sources in the preparation of an offering document or customary marketing materials for any of the Debt Financing, (v) reasonably cooperating with the Financing, if applicable marketing efforts of Buyer and taking corporate actions reasonably requested by Parent to permit the consummation its financing sources for any of the Financing provided that they are contingent on the completion of the Debt Financing, (vi) obtain from reasonably facilitating the Companies’ existing banking lenders customary payoff letterspledging of collateral, lien releases, instruments of termination or discharge, if applicable, and (vii) provide assistance with respect using its commercially reasonable efforts to the review and grant of any security interests in and/or pledging of collateral for and providing of guarantees supporting the Financing and obtaining any consents associated therewith, (viii) provide Parent with any financial statements of the Companies required to be provided pursuant to this Agreement, and (ix) provide, no later than four business days prior to Closing, all documentation and other information as has been reasonably requested in writing at least 10 business days prior to Closing by the Financing Sources that they reasonable determine is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(f) For the avoidance of doubt and notwithstanding anything herein to the contrary, (i) nothing herein shall require such cooperation to the extent it would unreasonably interfere in any material respect with the business or operations of either of the Companies or their Affiliates or require either of the Companies or their Affiliates to agree to pay any fees, reimburse any expenses, incur any Liability, in each case, that is not indemnified by or subject to reimbursement by the Parent or Buyer, or give any indemnities (other than with respect to customary “representation and authorization letters” in connection with the Offering Documents); (ii) the Companies shall not be required to enter into (or approve) any definitive agreement related to any proposed Financing, (iii) the Companies and their Affiliates shall not be required to take any action that would require any director, officer or employee of any Company or any of their Affiliates to execute, or be required to enter into, or adopt any resolutions approving, any document, agreement, certificate or instrument (provided, that the Companies shall cooperate with the Buyer to appoint Buyer's designees to the respective boards of directors (or equivalent bodies) of the Companies as of Closing for purposes of approving resolutions, the effectiveness of which is to be conditioned upon the Closing, related to the Financing), (iv) nothing herein shall require either of the Companies or their Affiliates to cause the delivery of obtain legal opinions, reliance letters or certificates; surveys and (v) neither Company or any of their Affiliates shall be required to take any action that conflicts with or violates their respective organizational documents, any applicable Law or Business Agreement or provide in connection with the Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged. Notwithstanding anything to the contrary herein, the condition set forth in Section 9.1(a), title insurance as it applies to the Seller’s obligations under this Section 7.6(f), shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller’s willful and material breach of its obligations under this Section 7.6(f) with respect to the Financingreasonably requested by Buyer.
Appears in 1 contract
Samples: Merger Agreement (CRC Health CORP)
Efforts to Obtain Funding. (a) Parent Buyer shall use its commercially reasonable best efforts to obtain the Financing as promptly as practical and, in any event, not later than the date the Closing is required to be effected in accordance with Section 4.1, practicable on the terms and subject to the conditions described in the Commitment Letter Letters (including the “flex” provisions of the related fee letterprovisions), including using its commercially reasonable best efforts to: (i) maintain in effect the Commitment Letter Letters and negotiate in good faith and enter into as promptly as practicable definitive agreements (the “Definitive Financing Agreements”) with respect to the Financing (A) on the terms and subject to the conditions reflected in the Commitment Letter Letters (including the “flex” provisions of the related fee letter)provisions) or (B) on other terms that are acceptable in good faith to Buyer, provided that such any terms that are inconsistent with the Commitment Letters (1) do not contain reduce the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing) below the amount that is required to consummate the transactions contemplated by this Agreement (including any costs and expenses incurred in connection with the transaction contemplated hereby), other than as expressly permitted pursuant to the “flex”, or impose new or additional conditions or otherwise expand, amend or modify any of the terms of the Financing or conditions to funding that are not the receipt of the Financing as set forth in the Commitment Letter and Letters and/or (2) otherwise would not reasonably be expected to prevent, impair or materially delay the Closing)Closing or make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur; (ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be complied with or satisfied by Parent Buyer in the Commitment Letter (including the “flex” provisions of the related fee letter) Letters and in such Definitive Financing Agreements; (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent Buyer to satisfy its obligations under this Agreement; (iv) pay in a timely manner any and all commitment or other fees that become payable by Buyer or Parent under the Commitment Letter on or Letters following the date hereof; and (v) enforce its rights under the Commitment Letter Letters (other than through commencing any legal proceeding to enforce its rights under the Commitment Letters) or the Definitive Financing Agreements, as applicable. In the event that all conditions to funding contained in the Commitment Letter Letters have been satisfiedsatisfied (without taking into account the condition set forth in Section 9.4), Parent Buyer shall use its commercially reasonable best efforts to cause the lenders under the Commitment Letters to fund the Financing on the date the Closing is required to occur pursuant to Section 4.1 (without giving effect to taking into account the first proviso thereincondition set forth in Section 9.4). Parent shall not, without the prior written consent of Seller, amend, replace, supplement or otherwise modify the Commitment Letter or the Definitive Financing Agreements, as applicable, in any manner (including by way of a side letter or other binding agreement, arrangement or understanding) in a way that would (A) add new, or expand any existing, conditions to the consummation of all or a portion of the Financing, (B) reduce the amount of the Financing, (C) adversely affect the ability of Parent or Buyer to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (D) reasonably be expected to prevent, impede or materially delay the consummation of the Contemplated Transactions or otherwise adversely affect the ability or likelihood of Buyer to timely consummate the Contemplated Transactions or make the satisfaction of the conditions to obtaining the Financing less likely to occur. Parent shall not release or consent to the termination of the obligations of any of the parties under the Commitment Letter or the Definitive Financing Agreements.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter Letters (including the “flex” provisions of the related fee letterprovisions) for any reason or the Commitment Letter Letters shall be terminated or modified without the consent of Buyer in a manner materially adverse to Seller Buyer for any reasonreason (each, Parent a “Financing Unavailability”), Buyer shall use its commercially reasonable best efforts to obtain, as promptly as practicable, and in any event no later than three business days prior to the date the Closing is required to occur pursuant to Section 4.1, from the same or alternative financing sources, alternative financing on terms not less favorable (including, for the avoidance of doubt, (1) all conditions precedent and contingencies materially more burdensome to funding of such financing being in the aggregate, in respect of certainty of funding, equivalent to (or more favorable to Parent than) the conditions precedent and contingencies set forth in the Commitment Letter (prior to such Alternative Financing) and (2) such substitution not (x) delaying or preventing the Closing, (y) adversely impacting the likelihood of the funding of the Financing or (z) adversely impacting the ability of Parent or Buyer to enforce its rights against the other parties to the Commitment Letter or the Definitive Financing Agreements or the ability of Parent or Buyer to timely consummate the transactions contemplated hereby) to Parent than the terms of the Financing in an amount equal to the lesser of (i) an amount sufficient to consummate the transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent), and (ii) that is not less than the amount of financing that was contemplated by the Commitment Letter Letters on the date hereofhereof to be funded on the Closing Date. In the event any alternative or substitute financing is obtained by Parent Buyer in accordance with the terms of this Section 7.6(b) (the “Alternative Financing”), references herein to the Financing (including, for avoidance of doubt, the references in this Section 7.6, but excluding references in Section 6.4) shall be deemed to refer to the Alternative Financing, and if a new financing commitment letter is letters are entered into in connection with such Alternative Financing, references herein to the Commitment Letter Letters shall be deemed to refer to such new financing commitment letters (including, for avoidance of doubt, the references in this Section 7.6, but excluding the references in Section 6.4) shall be deemed to refer to the new financing commitment letter entered into in connection with the Alternative Financing and any references to the fee letters shall refer to the new fee letters entered into in connection with the Alternative Financing).
(c) Parent Notwithstanding anything to the contrary contained in this Agreement, Buyer shall not be required, and in no event shall the commercially reasonable best efforts of Buyer be deemed or construed to require, Buyer to (i) commence any legal proceeding to enforce the Commitment Letters or (ii) pay any fees or other amounts in excess of those contemplated by the Commitment Letters and the fee letters referenced therein. Notwithstanding the foregoing, in the event of a Financing Unavailability, Buyer shall, within 14 days after the occurrence of such Financing Unavailability, deliver written notice to Seller informing Seller whether Buyer elects to continue to try to obtain Alternative Financing. If Buyer elects to continue to try to obtain Alternative Financing, the limitation set forth in clause (ii) of the first sentence of this Section 7.6(c) shall terminate and be of no further force and effect and Buyer each acknowledges shall use its commercially reasonable best efforts to obtain such Alternative Financing. If Buyer elects not to continue to try to obtain Alternative Financing, this Agreement immediately shall be terminated and agrees that obtaining the Reverse Termination Fee shall become payable in accordance with Section 12.3. For the avoidance of doubt, Buyer’s election not to continue to try to obtain Alternative Financing is under this Section 7.6(c) shall not be deemed to be a condition to its obligations to consummate the Contemplated Transactionswillful and material Breach of this Agreement, including this Section 7.6.
(d) Buyer shall shall, upon the request of Seller, promptly (i) reimburse Seller for all reasonable and documented reasonable third-party out-of-pocket costs and expenses (including reasonable attorneys’ and accountants fees’) incurred by Seller or any of its Affiliates Subsidiaries at the request of Buyer in connection with their cooperation with Buyer in its efforts to obtain obtaining the Financing and (ii) Financing. Buyer shall indemnify and hold harmless the Companies Company Group and their Affiliates for the Seller Group Members from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing or (including any action taken in accordance with Section 7.6(e)) and any information used utilized in connection therewith (other than historical information provided by the Seller Company Group), except to the extent that such Liabilities arise out of or result from any willful misconduct or bad faith of Seller, the Company Group, any of its Affiliates) and all actions taken by the Companies or their respective Affiliates pursuant to this Section 7.6or any Representatives of any of the foregoing.
(e) Prior to the Closing, Seller shall use, and shall cause the Companies Company Group and its Representatives to use use, their commercially reasonable best efforts to provide such cooperation reasonably requested by Buyer and the arrangers of the Financing in connection with the arrangement, syndication (including marketing efforts in connection therewith) and consummation of the Financing (including any replacement, amended, modified or alternative financing); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller or the Company Group. Such cooperation shall include using commercially reasonable best efforts to, at Parent’s and Buyer’s sole expense, provide all customary cooperation reasonably requested by Parent in connection with Parent arranging the Financing, including, if requested by Parent, using reasonable best efforts to :
(i) assist with the preparation of customary offering and syndication documents and materials, including lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing, (ii) have the Companies designate a member of senior management of the Companies to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Companies furnish Buyer and the Financing Sources and potential lenders with such information in the Financingpossession of Seller or the Company Group necessary for Buyer to prepare financial statements, (iii) assist Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Commitment Letters, (iv) assist in the preparation of definitive financing documents, including guarantee documents and other certificates and documents as may be reasonably requested by Parent, (v) obtain from the Companies’ existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Financing, if applicable and taking corporate actions reasonably requested by Parent to permit the consummation of the Financing provided that they are contingent on the completion of the Financing, (vi) obtain from the Companies’ existing banking lenders customary payoff letters, lien releases, instruments of termination or discharge, if applicable, (vii) provide assistance with respect to the review and grant of any security interests in and/or pledging of collateral for and providing of guarantees supporting the Financing and obtaining any consents associated therewith, (viii) provide Parent with any unaudited pro forma financial statements of the Companies required to be provided pursuant to this AgreementBusiness, projections of the Business and (ix) provide, no later than four business days prior to Closing, all documentation and other financial data and information of the Business and the Company Group and other pertinent and customary information regarding the Business and the Company Group, in each case, as has been set forth in the Commitment Letters or as otherwise reasonably requested in writing at least 10 business days prior by Buyer to Closing by consummate the Financing Sources that they reasonable determine is as promptly as reasonably practicable following Buyer’s request (including information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.USA Patriot Act (Title III of Pub. L. 107-56));
(fii) For arrange for direct contact between senior management of Seller (including, if reasonable, its Chief Executive Officer) and the avoidance Company Group and the Financing Sources at times and locations reasonably mutually agreed upon among Seller, Buyer and the Financing Sources;
(iii) cause the officers and senior employees of doubt Seller (including, if reasonable, its Chief Executive Officer) and notwithstanding anything herein the Company Group to participate, upon reasonable notice, in a reasonable number of meetings, conference calls, presentations, road shows and other meetings with potential lenders, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing and otherwise cooperating in syndication and marketing efforts as set forth in the Commitment Letters or as otherwise reasonably requested by Buyer;
(iv) cause the Company Group to provide reasonable assistance with the preparation by Buyer of customary materials for rating agency presentations, offering and marketing materials (including “public” and “private” versions), bank information memoranda and offering documents in connection with the Financing;
(v) cooperate with Buyer’s efforts to obtain public corporate and corporate family ratings and ratings of the debt facilities contemplated by the Financing, at Buyer’s sole expense, in each case as reasonably requested by Buyer;
(vi) consent to the contrary, (i) nothing herein shall require such cooperation to use of the extent it would unreasonably interfere Company Group’s logos in any material respect connection with the business or operations of either Financing;
(vii) cause the Company Group to provide reasonable (including in terms of the Companies or their Affiliates or require either nature and timing of the Companies request) assistance to facilitate the preparation by Buyer (A) to obtain guarantees and the pledging and perfection of collateral (including any Company Group or their Affiliates to agree to pay any fees, reimburse any expenses, incur any Liabilitythird party consents) in connection with the Financing and (B) of credit and other loan documents (including schedules thereto) and security agreements (including schedules thereto), in each case, as set forth in the Commitment Letters or as otherwise reasonably requested by Buyer; provided, that is not indemnified by or subject to reimbursement by no obligation of the Parent or BuyerCompany Group, or give any indemnities (Encumbrance on any of their respective assets, for the Financing shall be effective until after the Closing; none of Seller or its Subsidiaries or, prior to the Closing Date, any Member or any of their respective Representatives shall be required to pay any commitment or other than with respect to customary “representation and authorization letters” fee or incur any other Liability in connection with the Offering Documents)Financing; (ii) the Companies shall not be required to enter into (or approve) neither Seller, any definitive agreement related to Subsidiary of Seller, any proposed Financing, (iii) the Companies and their Affiliates shall not be required to take any action that would require any director, officer or employee of any Company or Member nor any of their Affiliates to execute, or be required to enter into, or adopt any resolutions approving, any document, agreement, certificate or instrument (provided, that the Companies shall cooperate with the Buyer to appoint Buyer's designees to the respective boards of directors (or equivalent bodies) of the Companies as of Closing for purposes of approving resolutions, the effectiveness of which is to be conditioned upon the Closing, related to the Financing), (iv) nothing herein shall require either of the Companies or their Affiliates to cause the delivery of legal opinions, reliance letters or certificates; and (v) neither Company or any of their Affiliates Representatives shall be required to take provide any action that conflicts legal opinion or other opinion of counsel in connection with the Financing; none of Seller or violates any of its Affiliates (or any of its or their respective organizational documentsemployees, officers or directors) shall be required to, and, prior to Closing, no director or officer of any applicable Law Member shall be required to, execute any agreement, certificate, document or Business Agreement or provide instrument in connection with the Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged. Notwithstanding anything that would be effective prior to the contrary herein, the condition set forth in Section 9.1(a), as it applies to the Seller’s obligations under this Section 7.6(f), shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Seller’s willful and material breach of its obligations under this Section 7.6(f) with respect to the FinancingClosing Date.
Appears in 1 contract
