Existing Indebtedness. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtained.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Validus Holdings LTD), Agreement and Plan of Merger (American International Group Inc)
Existing Indebtedness. If requested by Parent, the Company shall provide commercially use reasonable cooperation best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents documents, or instruments necessary, proper proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by ParentParent in writing, the Company shall provide commercially use reasonable cooperation best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing Closing (or such other date thereafter selected as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent) , and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter any Existing Debt Documents to permit the consummation of the Transactions thereunder. In furtherance of thereunder and obtaining any amendments to or other consents under the foregoingExisting Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall shall, and shall cause its Subsidiaries to to, execute and deliver such customary notices, agreements, documents documents, or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretionconnection therewith. Notwithstanding anything in this Section 6.16 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 6.15 to (i) incur or agree to incur any out-of-pocket expenses expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar fee to any of the foregoing, unless Parent provides the funding to the Company therefor therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date Date, unless contingent upon the occurrence of the Closing, (ivv) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vvi) include take any actions action that the Company reasonably believes could (wA) violate its or its Subsidiaries’ certificate of incorporation or bylaws bye-laws (or comparable documents), (xB) violate any applicable lawLaw, (yC) constitute a default or violation under, or give rise to any right of termination, cancellation cancellation, or acceleration of any right or obligation of such Person the Company or its Subsidiaries or to a loss of any benefit to which such Person the Company or its Subsidiaries is entitled under any provision of, of any agreement or other instrument binding upon such Person or to which such Person is a partyContract, or (zD) result in the creation or imposition of any lien Lien on any asset of such Personthe Company or its Subsidiaries, (vivii) to waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (viixi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.166.15. Parent shall defend, indemnify indemnify, and hold harmless any the Company, any of its Subsidiaries Subsidiaries, and any of their respective Representatives from, against against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunderhereunder or any information utilized in connection therewith. Notwithstanding this Section 6.16 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments amendments, or other similar actions described in this section Section 6.15 and Section 6.14 be obtained.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Aspen Insurance Holdings LTD), Agreement and Plan of Merger (Aspen Insurance Holdings LTD), Agreement and Plan of Merger (Aspen Insurance Holdings LTD)
Existing Indebtedness. If requested by ParentPrior to or substantially contemporaneously with the initial funding of Loans on the Effective Date, (i) all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement shall have been or shall be paid in full, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 commitments of the Company Disclosure Letter (collectivelylenders thereunder shall have been terminated, “all letters of credit outstanding thereunder shall have been terminated or shall on the Effective Date become Existing Debt Documents”) in respect Letters of the TransactionsCredit, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates all guarantees and opinions of counsel required to be delivered thereunder Liens existing in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) Credit Agreement and the procurement of customary payoff letters “Loan Documents” referred to therein shall have been discharged and released and all related UCC and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company filings shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, have been terminated; (ii) incur all principal, premium, if any, interest, fees and other amounts due or agree to incur any consentoutstanding under the Existing Acquired Company Credit Agreement shall have been or shall be paid in full, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence commitments of the Closinglenders thereunder shall have been terminated, (iv) unreasonably interfere with all letters of credit outstanding thereunder shall have been terminated or shall on the normal operations Effective Date become Existing Letters of the Company Credit, all guarantees and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred Liens existing in connection with the cooperation hereunderExisting Acquired Company Credit Agreement shall have been discharged and released and all related UCC filings shall have been terminated; provided, that in lieu of causing any loans outstanding under the Existing Acquired Company Credit Agreement to be paid, the Company may (A) acquire such Loans, (B) pledge the same, together with all related rights and interests (including all rights under the Existing Acquired Company Credit Agreement and all related guarantees and security agreements) as security for the Obligations under the Security Agreement (and maintain in effect all UCC and other filings with respect to the Liens securing such loans) and (C) cause the Existing Acquired Company Credit Agreement and all related documentation to be amended in a manner satisfactory to the Administrative Agent; and (iii) the ISDA Master Agreement dated as of December 27, 2007, between the Acquired Company and JPMCB, and all swap transactions governed thereby, shall have been terminated and all obligations in respect thereof shall have been discharged. Notwithstanding this Section 6.16 or anything The Administrative Agent shall have received evidence reasonably satisfactory to it of the satisfaction of the conditions set forth in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedparagraph.
Appears in 2 contracts
Samples: Credit Agreement (Dress Barn Inc), Credit Agreement (Dress Barn Inc)
Existing Indebtedness. If requested by ParentThe Loan Documents described on Exhibit F hereto and made a part hereof (i.e., the “Loan Documents” and the funds disbursed thereunder, the “Loan”), are the only documents or agreements relating to the Existing Indebtedness to which the Company or the Property shall provide commercially reasonable cooperation be bound after the Closing (subject to Parent and Merger Sub in taking such actions modifications or amendments as may be required by the Lender prior to the closing). There are necessary no amendments or modifications (written, oral, by course of conduct or otherwise) to the Loan Documents other than as described on Exhibit F. The Loan was originated by Lender. The original principal amount of the Loan to the Company under the indentures listed in item (iii) Loan Documents was $ . The current amount of Section 4.16 principal outstanding under the Loan Documents as of November 30, 2011 is $ . The annual rate of interest throughout the remaining term of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel Loan is %. All payments required to be delivered thereunder made under the Loan Documents to date have been made and will be made as of the Closing Date. There are no other fees, expenses or other amounts due to the Lender as of the date hereof (other than fees which may be imposed after the date of execution of this Agreement in connection with the Transactionstransfer of the Membership Interests to the Operating Partnership and which shall be payable by the Operating Partnership in accordance with Section 4.5(b) hereof). If requested by Parent, Neither the Company shall provide commercially reasonable cooperation nor, to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) best of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by ParentManager’s knowledge, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, Lender is in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required default under the credit agreements listed in Section 4.03(c) Loan Documents. There are no other obligations of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contraryLender except as set forth in writing in the Loan Documents. No controversy, in no event shall claim, dispute or disagreement exists between the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding parties to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the ClosingLoan Documents. No event has occurred which, (iv) unreasonably interfere with the normal operations giving of notice or the Company and its Subsidiariespassage of time, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents)both, (x) violate any applicable law, (y) would constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s Loan Documents which has not been cured. The Loan Documents are in full force and effect. There are no reserves held by the Lender, except as set forth on the Disclosure Schedule. The Loan Documents shall not be further extended, modified or any of its Subsidiaries’ Representatives incurring any personal liability with respect amended prior to any matters relating to Closing (except as may be required by the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred Lender in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement transfer of the Membership Interests to the contraryOperating Partnership). There is no pending or, each of the parties hereto agrees that it is not a condition to the Closing that Company Manager’s knowledge, threatened, litigation, proceeding or investigation relating to the payoff letters, consents, amendments or other similar actions described in this section be obtainedLoan Documents.
Appears in 2 contracts
Samples: Contribution Agreement (Wheeler Real Estate Investment Trust, Inc.), Contribution Agreement (Wheeler Real Estate Investment Trust, Inc.)
Existing Indebtedness. If requested by ParentExcept as described therein, the Company shall provide commercially reasonable cooperation to Parent Schedule 4(m) hereto sets forth a complete and Merger Sub in taking such actions correct list of all outstanding Indebtedness (as are necessary under the indentures listed in item (iiihereinafter defined) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its SubsidiariesSubsidiaries as of May 31, (v) include any actions that 2003, since which date there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Indebtedness of the Company reasonably believes could (w) violate or its certificate Subsidiaries. Neither the Company nor any Subsidiary is in default and no waiver of incorporation or bylaws (or comparable documents)default is currently in effect, (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration in the payment of any right principal or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien interest on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any Indebtedness of the Company’s Company or any of its Subsidiaries’ Representatives incurring any personal liability such Subsidiary and no event or condition exists with respect to any matters relating Indebtedness of the Company or any Subsidiary that would permit (or that with notice or the lapse of time, or both, would permit) one or more persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment. For purposes of this Agreement, “Indebtedness” with respect to the this Section 6.16. Parent shall defendCompany means, indemnify at any time, without duplication, (i) its liabilities for borrowed money and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and redemption obligations in respect of mandatorily redeemable preferred stock; (ii) its liabilities for the deferred purchase price of property acquired by the Company (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property); (iii) all liabilities appearing on its balance sheet in accordance with GAAP in respect of capital leases; (iv) all liabilities for borrowed money secured by any Lien with respect to any property owned by the Company (whether or not it has assumed or otherwise become liable for such liabilities); (v) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and all claimsother financial institutions (whether or not representing obligations for borrowed money); and (vi) any guaranty of the Company with respect to liabilities of a type described in any of subclauses (i) through (v) hereof. Except as set forth on Schedule 4(m), liabilitiessince the date of the 2003 Financial Statements (as defined in Section 4(q)), lossesneither the Company nor any Subsidiary has incurred any liabilities of any kind, damagescharacter and description, judgmentswhether accrued, finesabsolute, penaltiessecured or unsecured, costs and expenses resulting from contingent or otherwise of a kind that would have been required to be disclosed on such 2003 Financial Statements if they were dated as of the date hereof other than (i) liabilities incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement ordinary course of business subsequent to the contrary, each date of the parties hereto agrees that it is 2003 Financial Statements and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not a condition required under generally accepted accounting principles to be reflected in the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtained2003 Financial Statements.
Appears in 2 contracts
Samples: Secured Note Purchase Agreement (Marver James D), Secured Note Purchase Agreement (Euniverse Inc)
Existing Indebtedness. If requested Developer and Agency acknowledge that: (i) the Agency has previously issued the Existing Indebtedness as part of the Agency’s customary tax allocation bond financing that is secured by Parent, its pledge of tax increment from the Company shall provide commercially reasonable cooperation BVHP Redevelopment Plan Area; (ii) the Agency has previously incurred additional indebtedness relating to Parent and Merger Sub in taking such actions as are necessary under its obligation to replenish certain reserve funds associated with bonds issued by certain project areas (the indentures listed in item “Agency-Wide Indebtedness”); (iii) of Section 4.16 the Agency’s repayment of the Company Disclosure Letter (collectively, “Existing Debt Documents”) Agency-Wide Indebtedness is secured in respect part by its pledge of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereoftax increment from several of its project areas, including the delivery BVHP Redevelopment Plan Area (the “Cross-Collateralization Pledge”); and (iv) it would be a violation of officer certificates and opinions of counsel the Agency’s debt obligations for the Agency to refuse to use Net Available Increment not otherwise pledged to pay Tax Allocation Debt if required to be delivered thereunder in connection meet the Agency’s payment obligations for the Agency-Wide Indebtedness. In keeping with the Transactions. If requested by ParentFunding Goals, however, the Company shall provide commercially reasonable cooperation Agency agrees that, when it is required to Parent and Merger Sub in either (a) arranging for make any payments on the termination Existing Indebtedness or on the Agency-Wide Indebtedness under the Cross-Collateralization Pledge, to the extent that doing so will not violate any Indenture or other instruments governing the Existing Indebtedness or the Agency-Wide Indebtedness, the Agency will make such payments using sources of Existing Debt Documents (or redemption of Agency funds other than the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) Candlestick Increment and the procurement of customary payoff letters Shipyard Increment. Developer agrees that the Agency’s obligation under this Section 3.5(c) does not require the Agency to incur additional indebtedness to meet its Existing Indebtedness or Agency-Wide Indebtedness payment obligations. The Agency agrees that on and other customary release documentation in connection therewith after the Reference Date, except for any Public Financing contemplated by this Financing Plan, the Agency will not incur any new or additional “indebtedness” (bincluding any new or additional tax allocation bonds) obtaining any consents required under the credit agreements listed in Section 4.03(c) CCRL the repayment of the Company Disclosure Letter to permit the consummation which is secured by a pledge of the Transactions thereunder. In furtherance of the foregoingCandlestick Increment or Shipyard Increment, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent without Developer’s Approval in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtained.
Appears in 2 contracts
Existing Indebtedness. If requested by ParentAs more fully set forth on Schedule 5.2.8, the Company shall provide commercially reasonable cooperation Property is subject to Parent and Merger Sub in taking such actions as are necessary under certain existing indebtedness, which is secured by, inter alia, a first mortgage or deed of trust on the indentures listed in item Property (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt DocumentsIndebtedness”) in respect of the Transactions). Purchaser, including delivering or causing a Subsidiary to deliver any at its election, such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required election to be delivered thereunder in connection with writing to Seller no later than that date which is five (5) Business Days after the Transactions. If requested by ParentEffective Date, shall have the Company shall provide commercially reasonable cooperation right to Parent and Merger Sub in either (a) arranging for seek the termination of Existing Debt Documents (or redemption consent of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) holder of the Company Disclosure Letter Existing Indebtedness to permit the consummation transaction contemplated by this Agreement without causing an acceleration of the Transactions thereunderExisting Indebtedness (the “Consent”). In furtherance of the foregoing, if requested by Parent, the Company Seller and Purchaser shall cooperate in good faith and shall cause its Subsidiaries use reasonable efforts to execute and deliver such customary noticesassist in obtaining the Consent; provided, agreementshowever, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event that Seller shall the Company not be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket costs or expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior therewith. If Purchaser elects not to obtain or is unable to obtain the Consent on or before April 21, 2006, pursuant to documentation reasonably acceptable to Purchaser and Seller, including, without limitation, estoppel provisions reasonably acceptable to Purchaser and releases of existing guaranties and indemnities from Seller and its affiliates in form reasonably acceptable to Seller (the “Loan Documents”), then, if the Closing Date unless contingent upon occurs, Seller shall cause the occurrence of Trust to pay at Closing the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any then outstanding principal balance and all claims, liabilities, losses, damages, judgments, fines, penalties, costs other sums due and expenses resulting from or incurred payable in connection with the cooperation Existing Indebtedness, including, without limitation, any prepayment penalty that may be due thereunder. If Purchaser elects to obtain and does obtain the Consent, at Closing, Purchaser shall be entitled to deduct from the Purchase Price otherwise payable hereunder. Notwithstanding this Section 6.16 , the then-outstanding principal balance and other sums due and payable in connection with the Existing Indebtedness, including any transfer fees, assumption fees, and points on additional loan proceeds, not to exceed the amount Seller would otherwise be obligated to pay as a prepayment premium were Purchaser to elect to not seek the Consent, but excluding any other costs, fees or anything in this Agreement to the contrary, each expenses of the parties hereto agrees that it is not a condition holders of the Existing Indebtedness, their counsel or third party consultants incurred or payable in connection with Purchaser’s attempt to obtain the Closing that Consent the payoff letters, consents, amendments or other similar actions described in this section be obtainedExisting Indebtedness.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Existing Indebtedness. If requested For so long as the Additional Credit Facility is outstanding, in the event Borrower fails to perform or comply with any of the provisions of Sections 5.10 (to the extent pertaining to Material Contracts and Proprietary Rights not related to ownership and operation of the Mortgaged Property), 7.1 (except with respect to Indebtedness secured by ParentLiens on the Mortgaged Property), 7.3 (to the extent pertaining to Material Contracts and Proprietary Rights not related to ownership and operation of the Mortgaged Property), 7.4 (other than Section 7.4(A)(2)), 7.6 or 7.12 of this Agreement (such sections, the Company “Override Sections”), Lender shall provide commercially reasonable cooperation be deemed to Parent have consented to such failure and Merger Sub in taking such actions as are necessary failure shall not be deemed a Default or an Event of Default under this Agreement, if (i) such action is not prohibited under the indentures listed in item (iii) of Section 4.16 terms of the Company Disclosure Letter Additional Credit Facility or (collectivelyii) if prohibited under the Additional Credit Agreement, “Existing Debt Documents”the Additional Credit Lender consents in writing to such failure (or takes such other action so that such failure does not continue as a default or event of default under such Additional Credit Agreement (whether by temporary or permanent waiver or forbearance, amendment or otherwise)) within 180 days of becoming aware thereof. In the event (A) the Additional Credit Lender takes actions in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable accordance with clause (ii) above and Borrower’s failure to comply with the terms thereof, including specific Override Sections could reasonably be determined to have materially impaired the delivery of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption interests of the relevant notes or debentures) at Lender with respect to the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) full repayment of the Company Disclosure Letter Obligations as and when due and payable and (B) the Additional Credit Lender received as a condition to permit the consummation of the Transactions thereunder. In furtherance of the foregoingtaking such actions any financial incentives, if requested by Parentpaydowns, the Company shall and shall cause its Subsidiaries to execute and deliver such customary noticesadditional credit support or, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective except (x) as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything provided below in this Section 6.16 5.13 with respect to pledges of stock in Subsidiaries from the Borrower or any of its Subsidiaries or (y) with respect to assets that are either or both (I) then encompassed within security interests existing in collateral granted by Borrower in favor of the Additional Credit Lender under the Additional Credit Facility (whether pursuant to after-acquired property clauses or, unless resulting from actions taken in accordance with clause (ii) above, otherwise) or (II) the product of, proceeds of or derived from existing collateral pledged by Borrower to the contraryAdditional Credit Lender under the Additional Credit Facility, collateral (such as a fee, increase in return on credit extensions or loan repayment, warrant or other financial interest in Borrower or its Subsidiaries or additional Subsidiary guaranties of the obligations under the Additional Credit Facility), Lender shall also be provided such financial benefits on a pro rata basis (i.e., in proportion to the respective outstandings under the facilities, with the Future Advance not being considered outstanding under this Agreement until actually distributed to Borrower under Section 5.13 of this Agreement). Notwithstanding the foregoing, in no event shall the Company be required in connection with its obligations under this Section 6.16 to foregoing provisions provide for (i) incur pledges of stock in Subsidiaries of the Borrower, provided Lender receives unsecured guaranties of the Obligations from Subsidiaries of the Borrower in lieu of such pledges or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur Lender to receive any additional financial incentives, paydowns or agree to incur any consent, amendment or similar fee unless Parent provides additional credit support in conjunction with the funding to Borrower’s prepayment of obligations under the Company therefor (iii) incur any liability in connection therewith prior to Additional Credit Facility with proceeds from VantagePoint’s exercise of warrants issued by the Borrower that VantagePoint holds as of the Closing Date unless contingent upon Date. Borrower shall promptly deliver copies of all notices, demands, reports or requests given to, or received by Borrower from the occurrence Additional Credit Lender, and shall notify Lender within two (2) Business Days after Borrower receives notice or acquires knowledge of the Closing, (iv) unreasonably interfere any default or any condition or event that with the normal operations passage of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) time would constitute a default under the Additional Credit Facility, in each case to the extent the same relate to failures to perform or violation under, or give rise to any right of termination, cancellation or acceleration comply with the Override Sections. Promptly upon Borrower obtaining knowledge of any right or obligation such default under the Additional Credit Facility, Borrower shall deliver a certificate of such Person Borrower’s chief financial officer or to a loss similar officer specifying the nature and period of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset existence of such Personcondition or event and what action Borrower has taken, (vi) is taking or proposes to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability take, if any, with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedthereto.
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Administrative Agent shall have received evidence satisfactory to the Administrative Agent and the Lenders that, after giving effect to the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents liability on (or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If requested footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT money and Capitalized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by ParentSection 4.1(n) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the Company "SURVIVING DEBT"), and (ii) the Borrower and each of its Subsidiaries shall provide commercially reasonable cooperation to Parent and Merger Sub have paid in either (a) arranging for the termination of Existing Debt Documents (or redemption full all other Indebtedness of the relevant notes or debentures) at Borrower and each of its Subsidiaries existing prior to the closing making of the initial Loans hereunder (or such other date thereafter selected by Parentall of the foregoing Indebtedness described in the foregoing clause (i) and (ii) referred to collectively as "EXISTING DEBT"). The Administrative Agent shall be satisfied that the procurement of customary payoff letters execution and other customary release documentation in connection therewith or (b) obtaining any consents required under delivery of, and the credit agreements listed in Section 4.03(c) performance by each of the Company Disclosure Letter Borrower and its Subsidiaries of its respective obligations under, each Transaction Document to permit the which it is a party and consummation of the Transactions thereunderdoes not violate, conflict with or cause a default under any document or instrument evidencing Existing Debt. In furtherance of the foregoing, if requested by Parent, the Company The Administrative Agent shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expenses unless they are promptly reimbursed by Parentthe Administrative Agent, from each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such UCC Amendments (or agree to incur any consentits equivalent), amendment or similar fee unless Parent provides the funding intellectual property lien releases in recordable form in all applicable jurisdictions, and other lien and mortgage release and termination agreements, evidence of release of federal and state tax liens, all in form and substance satisfactory to the Company therefor (iii) incur any liability Administrative Agent, as the Administrative Agent shall request, duly executed by the appropriate Person in connection therewith prior to the Closing Date unless contingent upon the occurrence favor of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedLiens were granted.
Appears in 1 contract
Existing Indebtedness. If requested by (i) the Parent, the Company Borrower and its Restricted Subsidiaries shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions have no Indebtedness for borrowed money outstanding as are necessary of the Closing Date other than under the indentures listed Term Facilities, the Senior Notes, the Senior Subordinated Notes, the ABL Facility and the other Indebtedness permitted by Section 7.2 and (ii) Parent, Borrower and its Subsidiaries shall have repaid in item full all Indebtedness outstanding under the Existing Credit Facility, together with all accrued but unpaid interest, fees and other amounts owing thereunder (iiiother than (A) contingent indemnification obligations not yet due and payable and (B) obligations with respect to existing letters of Section 4.16 credit (so long as such existing letters of credit are deemed letters of credit under the Company Disclosure Letter ABL Facility) (collectivelysuch letters of credit, “Existing Debt DocumentsLetters of Credit”)) and (i) all commitments to lend or make other extensions of credit thereunder shall have been terminated, (ii) all security interests in respect of, and Liens securing, the Indebtedness and other obligations thereunder created pursuant to the security documentation relating thereto shall have been terminated and released, and the Administrative Agent shall have received all such releases as may have been reasonably requested by the Administrative Agent, which releases shall be in form and substance reasonably satisfactory to Administrative Agent, including, without limiting the foregoing, (a) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the Uniform Commercial Code or equivalent statute or regulation of each jurisdiction where a financing statement or application for registration (Form UCC-1 or the Transactionsappropriate equivalent) was filed with respect to Parent, including delivering Borrower or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder its Subsidiaries in connection with the Transactions. If requested by Parent, security interests created with respect to the Company shall provide commercially reasonable cooperation to Parent Existing Credit Facility and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining terminations or reassignments of any consents required under the credit agreements listed in Section 4.03(c) security interest in, or Lien on, any patents, trademarks, copyrights, or similar interests of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s Borrower or any of its Subsidiaries’ Representatives incurring any personal liability Subsidiaries and (iii) other than with respect to any matters relating Existing Letters of Credit, the Parent and its Subsidiaries shall have made arrangements reasonably satisfactory to the this Section 6.16. Parent shall defend, indemnify Administrative Agent and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect Joint Lead Arrangers for the cancellation of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each letters of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedcredit outstanding thereunder.
Appears in 1 contract
Existing Indebtedness. If requested On the Closing Date (substantially concurrently with the initial funding of the Loans hereunder), (A) Borrower and its Subsidiaries shall have (i) repaid in full (x) the Existing Valeant Facility and (y) all other Indebtedness of Borrower, other than (1) Indebtedness with an aggregate principal amount not in excess of $5,000,000, (2) Indebtedness set forth on Schedule 6.1 hereto and (3) Indebtedness among the Credit Parties and their Subsidiaries permitted by ParentSection 6.1 hereto and except for the Existing Notes (as to which clause (B) below shall apply), the Company shall provide commercially reasonable cooperation (ii) terminated any commitments to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item lend or make other extensions of credit thereunder, (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary delivered to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, Administrative Agent all documents or instruments necessary to either terminate the Existing Debt Documents release all Liens securing such Indebtedness or redeem the relevant notes or debentures, in each case effective as other obligations of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in Borrower and its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to Subsidiaries thereunder being repaid on the Closing Date unless contingent upon the occurrence of the Closing, and (iv) unreasonably interfere with the normal operations of the Company made arrangements reasonably satisfactory to Administrative Agent and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability Arrangers with respect to the cancellation of any matters relating letters of credit outstanding thereunder or the issuance of Letters of Credit to support the this Section 6.16. Parent shall defend, indemnify obligations of Borrower and hold harmless any the Company, its Subsidiaries and any with respect thereto, (B) Borrower shall have repaid or issued an irrevocable call notice with respect to all of their Representatives from, against and the Existing Notes in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection accordance with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each terms of the parties hereto agrees that it is not a condition indentures governing such Existing Notes and shall have deposited amounts necessary to redeem the Closing that the payoff lettersoutstanding amount of such Existing Notes, consentstogether with any accrued interest, amendments premium or other similar actions described in this section be obtainedamounts owed, with the trustees under the indentures governing the Existing Notes and (C) there will not exist (pro forma for the Transactions) any default or event of default under the Valeant Convertible Notes.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International)
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents liability on (or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If requested footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by ParentSection 4.1(q) and (B) Indebtedness set forth on Schedule 7.2 (collectively, the "Surviving Debt"), the aggregate outstanding principal amount of which shall not exceed $100,000,000 as of the Closing Date, and (ii) the Borrower, the Company and each of their respective Subsidiaries shall provide commercially reasonable cooperation to Parent and Merger Sub have paid in either (a) arranging for the termination of Existing Debt Documents (or redemption full all other Indebtedness of the relevant notes or debentures) at Borrower, the closing Company and their respective Subsidiaries existing prior to the making of the initial Loans hereunder (or such other date thereafter selected by Parentall of the foregoing Indebtedness described in the foregoing clause (i) and (ii) referred to collectively as "Existing Debt"). The Agent shall be satisfied that the procurement of customary payoff letters execution and other customary release documentation in connection therewith or (b) obtaining any consents required under delivery of, and the credit agreements listed in Section 4.03(c) performance by each of the Borrower, the Company Disclosure Letter and their respective Subsidiaries of its respective obligations under, each Transaction Document to permit the which it is a party and consummation of the Transactions thereunderdoes not violate, conflict with or cause a default under any document or instrument evidencing Existing Debt, other than Existing Debt being repaid on the Closing Date. In furtherance The Agent shall have received (i) payoff and lien termination and release agreements, in form and substance satisfactory to the Agent, from each creditor of the foregoing, if requested by ParentBorrower, the Company shall and shall cause its their respective Subsidiaries with respect to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debenturesother than Surviving Debt, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, and (ii) incur such Form UCC-3 (or agree to incur any consentits equivalent), amendment or similar fee unless Parent provides the funding intellectual property lien releases in recordable form in all applicable jurisdictions, and other lien and mortgage release and termination agreements, evidence of release of federal and state tax liens, all in form and substance satisfactory to the Company therefor (iii) incur any liability Agent, as the Agent shall request, duly executed by the appropriate Person in connection therewith prior to the Closing Date unless contingent upon the occurrence favor of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedLiens were granted.
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents liability on (or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If requested footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by ParentSection 4.1(n) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the Company "SURVIVING DEBT"), and (ii) the Borrower and each of its Subsidiaries shall provide commercially reasonable cooperation to Parent and Merger Sub have paid in either (a) arranging for the termination of Existing Debt Documents (or redemption full all other Indebtedness of the relevant notes or debentures) at Borrower and each of its Subsidiaries existing prior to the closing making of the initial Loans hereunder (or such other date thereafter selected by Parentall of the foregoing Indebtedness described in the foregoing clause (i) and (ii) referred to collectively as "EXISTING DEBT"). The Agent shall be satisfied that the procurement of customary payoff letters execution and other customary release documentation in connection therewith or (b) obtaining any consents required under delivery of, and the credit agreements listed in Section 4.03(c) performance by each of the Company Disclosure Letter Borrower and its Subsidiaries of its respective obligations under, each Transaction Document to permit which it is a party and consummation of the Transactions does not violate, conflict with or cause a default under any document or instrument evidencing Existing Debt, except to the extent that the consummation of the Transactions thereunder. In furtherance may constitute a breach of Section 4.7 of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of Senior Subordinated Note Indenture for 30 days after the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretionDate. Notwithstanding anything in this Section 6.16 to the contrary, in no event The Agent shall the Company be required in connection with its obligations under this Section 6.16 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expenses unless they are promptly reimbursed by Parentthe Agent, from each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such UCC Amendments (or agree to incur any consentits equivalent), amendment or similar fee unless Parent provides the funding intellectual property lien releases in recordable form in all applicable jurisdictions, and other lien and mortgage release and termination agreements, evidence of release of federal and state tax liens, all in form and substance satisfactory to the Company therefor (iii) incur any liability Agent, as the Agent shall request, duly executed by the appropriate Person in connection therewith prior to the Closing Date unless contingent upon the occurrence favor of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedLiens were granted.
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Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents liability on (or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If requested footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by ParentSection 4.1(n) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the Company "SURVIVING DEBT"), and (ii) the Borrower and each of its Subsidiaries shall provide commercially reasonable cooperation to Parent and Merger Sub have paid in either (a) arranging for the termination of Existing Debt Documents (or redemption full all other Indebtedness of the relevant notes or debentures) at Borrower and each of its Subsidiaries existing prior to the closing making of the initial Loans hereunder (or such other date thereafter selected by Parentall of the foregoing Indebtedness described in the foregoing clause (i) and (ii) referred to collectively as "EXISTING DEBT"). The Agent shall be satisfied that the procurement of customary payoff letters execution and other customary release documentation in connection therewith or (b) obtaining any consents required under delivery of, and the credit agreements listed in Section 4.03(c) performance by each of the Company Disclosure Letter Borrower and its Subsidiaries of its respective obligations under, each Transaction Document to permit the which it is a party and consummation of the Transactions thereunderdoes not violate, conflict with or cause a default under any document or instrument evidencing Existing Debt. In furtherance of the foregoing, if requested by Parent, the Company The Agent shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expenses unless they are promptly reimbursed by Parentthe Agent, from each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such UCC Amendments (or agree to incur any consentits equivalent), amendment or similar fee unless Parent provides the funding intellectual property lien releases in recordable form in all applicable jurisdictions, and other lien and mortgage release and termination agreements, evidence of release of federal and state tax liens, all in form and substance satisfactory to the Company therefor (iii) incur any liability Agent, as the Agent shall request, duly executed by the appropriate Person in connection therewith prior to the Closing Date unless contingent upon the occurrence favor of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedLiens were granted.
Appears in 1 contract
Existing Indebtedness. If requested On the Closing Date, Administrative Agent shall have received evidence reasonably satisfactory to it that (i) to the extent that any of the Senior Notes are not purchased and retired on or before the Closing Date pursuant to a tender offers for the Senior Notes, (A) irrevocable notices of redemption for such Senior Notes not tendered shall have been, or substantially simultaneously with the initial funding the of the Term Loans will be, given to the holders of such Senior Notes to redeem such Senior Notes on or about 30 days following the Closing Date (the “Senior Notes Redemption Date”) and (B) the conditions to achieve a Covenant Defeasance of the Senior Notes pursuant to the Senior Notes Indentures have been, or substantially simultaneously with the initial funding of the Term Loans will be, satisfied; provided that, with respect to the Floating Rate Notes, a Covenant Defeasance shall not be required if, prior to or substantially simultaneously with the initial funding of the Term Loans, (1) the Floating Rate Supplemental Indenture shall have become effective and (2) cash in Dollars shall have been deposited with the trustee under the Floating Rate Notes Indenture in an amount, reasonably estimated by Parentthe Borrower (and reasonably approved by Administrative Agent), sufficient to satisfy the requirements of Section 8.04(a)(i) of the Floating Rate Notes Indenture; (ii) all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Debt Agreements (other than under the Senior Notes Indentures and other than with respect to any outstanding letters of credit collateralized in a manner satisfactory to the Administrative Agent) shall have been paid in full, the Company commitments to lend or make other extensions of credit thereunder terminated and all guarantees and security in support thereof discharged and released. Administrative Agent shall provide commercially reasonable cooperation have received evidence reasonably satisfactory to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item it (iiii) of Section 4.16 of the Company Disclosure Letter (collectivelythat, “Existing Debt Documents”) in respect of immediately after giving effect to the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery none of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s Holdings or any of its Subsidiaries’ Representatives incurring Subsidiaries shall have any personal liability with respect to any matters relating Indebtedness other than the Indebtedness created under this Agreement, the Indebtedness created under the Revolving Credit Agreement and the Indebtedness set forth on Schedule 6.1 and (ii) that, immediately after giving effect to the this Section 6.16. Parent shall defendTransactions, indemnify and hold harmless there will not exist any the Company, its Subsidiaries and default or any event of default under any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to documents governing the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtained.Indebtedness set forth on Schedule 6.1
Appears in 1 contract
Existing Indebtedness. If requested by Parent, On the Company shall provide commercially reasonable cooperation Initial Borrowing Date and after giving effect to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) Transaction and the procurement Loans incurred on the Initial Borrowing Date, neither Parent nor any of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents shall have any preferred stock or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to Indebtedness outstanding except for (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parentthe Loans, (ii) incur or agree to incur any consentthe Senior Unsecured Notes (which shall constitute Indebtedness of Parent only), amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior Indebtedness existing pursuant to the Closing Date unless contingent upon the occurrence of the ClosingEarnout Agreement, (iv) unreasonably interfere with Indebtedness of Xxxxxx in an aggregate principal amount not to exceed $90 million represented by the normal operations of the Company and its SubsidiariesExisting Seller Installment Note, (v) include any actions that Indebtedness of Xxxxxx in an aggregate principal amount not to exceed $5 million represented by the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such PersonExisting Seller Subordinated Note, (vi) Indebtedness existing pursuant to waive or amend any terms the Existing Seller Letter of this Credit, the Existing Seller Letter of Credit Collateral Agreement or and the Existing Seller Letter of Credit Agreement, (vii) result in any Indebtedness of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating Borrower pursuant to the this Section 6.16. Parent shall defendSubordinated Intercompany Note, indemnify (viii) Indebtedness pursuant to one or more Transaction Intercompany Notes and hold harmless any the Company, its Subsidiaries (ix) certain intercompany indebtedness and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection other indebtedness as is listed on Schedule VI (with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions Indebtedness described in this section clause (x) being herein called "Scheduled Existing Indebtedness" and, together with the Indebtedness described in clauses, (iv), (v) and (vi) above being herein called the "Existing Indebtedness"), which Scheduled Existing Indebtedness shall not exceed $25,000,000 in aggregate principal amount. On and as of the Initial Borrowing Date, all of the Existing Indebtedness shall remain outstanding after giving effect to the Transaction and the other transactions contemplated hereby without any default or events of default existing thereunder or arising as a result of the Transaction and the other transactions contemplated hereby (except to the extent amended or waived by the parties thereto on terms and conditions satisfactory to the Agent and the Required Banks), and there shall not be obtainedany amendments or modifications to the Debt Agreements other than as requested or approved by the Agent or the Required Banks. On and as of the Initial Borrowing Date, the Agent and the Required Banks shall be satisfied with the amount of and the terms and conditions of all Existing Indebtedness.
Appears in 1 contract
Existing Indebtedness. If requested Simultaneously with the Closing, Parent shall, if the consent of the Company’s lenders is obtained by Parent, the Company extend or refinance, or, if such consent is not obtained, or if such consent is obtained but Parent shall provide commercially reasonable cooperation to nevertheless elect, Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectivelyshall repay, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required cause to be delivered thereunder in connection with the Transactions. If requested by Parentrepaid, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations on behalf of the Company and its Subsidiaries, (v) include any actions that outstanding Indebtedness of the Company reasonably believes could (w) violate and its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result Subsidiaries listed in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any Section 6.14 of the Company’s Company Disclosure Schedule. Repayment, if required or any elected, shall be made by wire transfer of its Subsidiaries’ Representatives incurring any personal liability immediately available funds pursuant to payoff letters provided to Parent by the Company at least two (2) Business Days prior to the Closing Date, which further provide for the release of all liens on the assets of the Company held by the applicable lenders. As of the Closing, if the existing Indebtedness is not refinanced, with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition letters of credit of the Company and its Subsidiaries issued pursuant to agreements governing Indebtedness of the Company and its Subsidiaries, Parent shall (i) cause such letter of credit to be returned to the Closing that issuers thereof and provide to the payoff lettersbeneficiary of such letter of credit a letter of credit on terms satisfactory to the beneficiary of such letters of credit or (ii) otherwise satisfy the issuers and beneficiaries of such letters of credit as to the disposition or retention of such letters of credit under the applicable credit facilities (e.g., consentscash collateralizing such obligations). After the date hereof, amendments or other similar actions described at the request of Parent, and subject to Parent’s obligations under the Confidentiality Agreement, the Company shall use reasonable efforts to provide information and documents as Parent’s proposed lenders may reasonably require. The Company shall in furtherance thereof use reasonable efforts to make its personnel available at reasonable times and following reasonable advance notice, for management presentations, and allow customary background checks, if requested by Parent. Nothing in this section be obtainedSection 6.14 is intended to modify the conditions to Closing set forth in Sections 7.1 and 7.2.
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents liability on (or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If requested footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capital ized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by ParentSection 4.1(q) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the "Surviving Debt"), the aggregate outstanding principal amount of which shall not exceed $350,000,000 as of the Closing Date, and (ii) the Borrower, the Company and each of their respective Subsidiaries shall provide commercially reasonable cooperation to Parent and Merger Sub have paid in either (a) arranging for the termination of Existing Debt Documents (or redemption full all other Indebtedness of the relevant notes or debentures) at Borrower, the closing Company and their respective Subsidiaries existing prior to the making of the initial Loans hereunder (or such other date thereafter selected by Parentall of the foregoing Indebtedness described in the foregoing clause (i) and (ii) referred to collectively as "Existing Debt"). The Agent shall be satisfied that the procurement of customary payoff letters execution and other customary release documentation in connection therewith or (b) obtaining any consents required under delivery of, and the credit agreements listed in Section 4.03(c) performance by each of the Borrower, the Company Disclosure Letter and their respective Subsidiaries of its respective obligations under, each Transaction Document to permit the which it is a party and consummation of the Transactions thereunderdoes not violate, conflict with or cause a default under any document or instrument evidencing Existing Debt, other than Existing Debt being repaid on the Closing Date. In furtherance The Agent shall have received (i) payoff and lien termination and release agreements, in form and substance satisfactory to the Agent, from each creditor of the foregoing, if requested by ParentBorrower, the Company shall and shall cause its their respective Subsidiaries with respect to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debenturesother than Surviving Debt, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, and (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws such Form UCC-3 (or comparable documentsits equivalent), (x) violate any intellectual property lien releases in recordable form in all applicable lawjurisdictions, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or and other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries mortgage release and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtained.termination agreements,
Appears in 1 contract
Existing Indebtedness. If requested by Parent(a) On or prior to the Closing Date, Seller shall deliver to Buyer executed payoff letters (and shall use reasonable best efforts to deliver to Buyer drafts of such payoff letters on or before the third (3rd) Business Day prior to the Closing Date), in customary form, from any of the holders (or the agent or trustee on behalf thereof) of Indebtedness under the agreements set forth in clause (a) of the definition of Existing Credit Facilities (such letters, the Company “Payoff Letters”), each of which shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under (i) include the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel total amount required to be delivered thereunder in connection with the Transactions. If requested by Parentpaid to fully satisfy all principal, the Company shall provide commercially reasonable cooperation to Parent interest, prepayment premiums, penalties, breakage costs or similar obligations (other than indemnity and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parentcontingent liabilities) and the procurement of customary payoff letters all fees, costs and other customary release documentation in connection therewith or (b) obtaining any consents required expenses under the credit applicable agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver evidencing such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective Indebtedness as of the anticipated Closing Date (or such other date thereafter selected by and the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letterdaily accrual thereafter), as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection together with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parentappropriate wire instructions, (ii) incur or agree to incur provide that upon receipt of the applicable payoff amounts, the applicable agreements evidencing such Indebtedness shall be terminated (other than any consentprovisions that by their terms survive the termination thereof), amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur provide that all Liens on the assets and properties of the Transferred Entities (including the equity interests thereof) securing any liability in connection therewith prior to such Indebtedness and all guarantees of such Indebtedness by the Transferred Entities shall be, upon the payment of the applicable payoff amounts on the Closing Date unless contingent upon the occurrence of the ClosingDate, released and terminated and (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws a customary commitment by such holders (or comparable documents), (xsuch agent or trustee on behalf thereof) violate any applicable law, (y) constitute a default to execute and provide documentation and filings reasonably necessary to evidence the release or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation termination of such Person or to a loss of any benefit to Liens (which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Companyrelease and termination shall be at Seller’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedexpense).
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents liability on (or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If requested footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the Revolving Loans outstanding hereunder as contemplated by ParentSection 4.1(q) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the Company "Surviving Debt"), the aggregate outstanding principal amount of which shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption not exceed $490,000,000 as of the relevant notes or debenturesClosing Date, and (ii) at the closing Borrower and each of its Subsidiaries shall have paid in full all other Indebtedness of the Borrower and each of its Subsidiaries existing prior to the making of the initial Revolving Loans hereunder (or such other date thereafter selected by Parentall of the foregoing Indebtedness described in the foregoing clause (i) and (ii) referred to collectively as "Existing Debt"). The Agent shall be satisfied that the procurement of customary payoff letters execution and other customary release documentation in connection therewith or (b) obtaining any consents required under delivery of, and the credit agreements listed in Section 4.03(c) performance by each of the Company Disclosure Letter Borrower and its Subsidiaries of its respective obligations under, each Transaction Document to permit the which it is a party and consummation of the Transactions thereunder. In furtherance of the foregoingdoes not violate, if requested by Parentconflict with or cause a default under any document or instrument evidencing Existing Debt, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the other than Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of being repaid on the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretionDate. Notwithstanding anything in this Section 6.16 to the contrary, in no event The Agent shall the Company be required in connection with its obligations under this Section 6.16 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expenses unless they are promptly reimbursed by Parentthe Agent, from each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such Form UCC-3 (or agree to incur any consentits equivalent), amendment or similar fee unless Parent provides the funding intellectual property lien releases in recordable form in all applicable jurisdictions, and other lien and mortgage release and termination agreements, evidence of release of federal and state tax liens, all in form and substance satisfactory to the Company therefor (iii) incur any liability Agent, as the Agent shall request, duly executed by the appropriate Person in connection therewith prior to the Closing Date unless contingent upon the occurrence favor of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedLiens were granted.
Appears in 1 contract
Existing Indebtedness. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for Prior to the termination of Existing Debt Documents (or redemption Closing, at its option, before the commencement of the relevant notes or debenturesMarketing Period, Parent may direct the Company to, in accordance with the indenture (as supplemented from time to time, the "Indenture") at governing the closing Company's 71/8% Senior Subordinated Notes due 2015 (or such other date thereafter selected by Parentthe "2015 Notes"), commence a tender offer and consent solicitation (the "Tender Offer") and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) for all of the Company Disclosure Letter to permit outstanding 2015 Notes on the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall terms and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as conditions determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event and Parent and Merger Sub shall provide such assistance as may be reasonably requested by the Company be required in connection therewith. In the event Parent elects before the commencement of the Marketing Period to direct the Company to conduct the Tender Offer, (i) Parent shall promptly prepare all necessary and appropriate documentation in connection with the Tender Offer, including the offer to purchase, related letters of transmittal and other related documents (collectively, the "Offer Documents"), shall provide the Company an opportunity to review and comment on the Offer Documents and shall include any proposed changes reasonably requested by the Company thereon; (ii) Parent and the Company shall cooperate, and shall use their reasonable best efforts to cause their respective advisors and representatives to cooperate, with each other in the preparation of the Offer Documents; (iii) the Company, Parent and Merger Sub shall cooperate in connection with the Tender Offer in order to cause the initial settlement of the Tender Offer to occur simultaneously with the Closing; (iv) upon the receipt of the necessary consents required to amend the Indenture, the Company shall enter into a supplemental indenture reflecting the amendments to such indenture approved by the holders of the 2015 Notes and will use its obligations under this Section 6.16 reasonable best efforts to cause the Indenture trustee to promptly enter into such supplemental indenture; provided that the amendments contained in such supplemental indenture shall not become operative until the acceptance of and payment for the 2015 Notes tendered representing a majority in principal amount of the 2015 Notes and the closing of the Tender Offer shall be conditioned on, and shall not occur prior to, the Effective Time and shall otherwise be completed in compliance with applicable Laws and SEC rules and regulations; and (iv) incur simultaneously with and conditioned upon the Closing and in accordance with the terms of the Tender Offer (but prior to the time the Company is required to pay for any 2015 Notes accepted in the Tender Offer), Parent shall provide to the Surviving Corporation the funds necessary to consummate the Tender Offer and consent solicitation (including the payment of all applicable premiums, consent fees and all related fees and expenses) and shall pay all fees and expenses related thereto, including those of any dealer managers. Nothing herein shall prevent the Company from preparing or agree filing any report required to incur be filed pursuant to the Exchange Act and incorporated by reference into the Offer Documents. Notwithstanding the foregoing, none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or to make any other payment (other than reasonable out-of-pocket expenses unless they are promptly reimbursed by Parent, (iicosts) or incur any other liability or provide or agree to incur provide any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability indemnity in connection therewith with the Tender Offer, compliance with this Section 6.19 or any of the foregoing that is effective prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16Effective Time. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any the Representatives of their Representatives from, the Company from and against and in respect of any and all claims, liabilities, losses, damages, judgmentsclaims, finescosts, penaltiesexpenses, costs interest, awards, judgments and expenses resulting from penalties suffered or incurred by them in connection with the cooperation hereunder. Notwithstanding Tender Offer and in compliance with this Section 6.16 6.19 (including any action taken in accordance with this Section 6.19(a)) and any information utilized in connection therewith (other than historical information relating to the Company or anything its Subsidiaries). Parent shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 6.19(a), including in connection with the review of the Offer Documents. At the request of Parent, in connection with the Tender Offer and the related consent solicitation, the Company shall enter into one or more dealer manager agreements on customary terms with such Persons as shall be determined by Parent (which agreements shall be assumed by Parent in the event this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedterminated).
Appears in 1 contract
Existing Indebtedness. If requested by ParentOn the Effective Date, the Company Administrative Agent shall provide commercially reasonable cooperation have received evidence reasonably satisfactory to Parent it that (i) to the extent the Senior Notes are not purchased and Merger Sub retired on or before the Effective Date pursuant to tender offers for the Senior Notes, (A) irrevocable notices of redemption for the Senior Notes not tendered shall have been, or substantially simultaneously with the effectiveness of this Agreement will be, given to the holders of such Senior Notes to redeem the Senior Notes on or about 30 days following the Effective Date (the “Senior Notes Redemption Date”) and (B) the conditions to achieve a Covenant Defeasance of the Senior Notes pursuant to the Senior Notes Indentures have been, or substantially simultaneously with the effectiveness of this Agreement will be, satisfied; provided that, with respect to the Floating Rate Notes, a Covenant Defeasance shall not be required if, prior to or substantially simultaneously with the effectiveness of this Agreement, (1) the Floating Rate Supplemental Indenture shall have become effective and (2) cash in taking such actions as are necessary dollars shall have been deposited with the trustee under the indentures listed Floating Rate Indenture in item an amount, reasonably estimated by the Borrower (iiiand reasonably approved by the Administrative Agent), sufficient to satisfy the requirements of Section 8.04(a)(i) of Section 4.16 of the Company Disclosure Letter Floating Rate Indenture; and (collectivelyii) all principal, “premium, if any, interest, fees and other amounts due or outstanding under the Existing Debt Documents”Agreements (other than under the Senior Notes Indentures and other than with respect to any outstanding letters of credit collateralized in a manner satisfactory to the Administrative Agent) shall have been paid in respect full, the commitments to lend or make other extensions of credit thereunder terminated and all guarantees and security in support thereof discharged and released. The Administrative Agent shall have received evidence reasonably satisfactory to it (i) that, immediately after giving effect to the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery none of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s Holdings or any of its Subsidiaries’ Representatives incurring Subsidiaries shall have any personal liability with respect to any matters relating Indebtedness other than the Indebtedness created under this Agreement, the Indebtedness created under the Term Loan Credit Agreement and the Indebtedness set forth on Schedule 6.01(a) and (ii) that, immediately after giving effect to the this Section 6.16. Parent shall defendTransactions, indemnify and hold harmless there will not be exist any the Company, its Subsidiaries and default or any event of default under any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to documents governing the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedIndebtedness set forth on Schedule 6.01(a).
Appears in 1 contract
Samples: Credit Agreement (Griffon Corp)
Existing Indebtedness. If requested by ParentOn the Initial Borrowing Date and after giving effect to the Transaction, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary under the indentures listed in item (iii) neither Holdings nor any of Section 4.16 of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents shall have any Preferred Stock or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to Indebtedness outstanding except for (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parentthe Loans and Letters of Credit, (ii) incur or agree to incur any consentAttributed Receivables Facility Indebtedness, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to Indebtedness of Holdings represented by the Closing Date unless contingent upon the occurrence of the ClosingConvertible Subordinated Debentures, (iv) unreasonably interfere with the normal operations of the Company and its SubsidiariesSenior Subordinated Bridge Loans in an aggregate principal amount not to exceed $450,000,000, (v) include any actions that Indebtedness of Holdings in an aggregate principal amount of $100,000,000 represented by the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents)Mezzanine Subordinated Debt, (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, and (vi) certain intercompany indebtedness and other indebtedness as is listed on Schedule VI in an aggregate outstanding principal amount not to waive or amend any terms of this Agreement or exceed $4,500,000 (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.16. Parent shall defend, indemnify and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions Indebtedness described in this section clause (vi) being herein called "Scheduled Existing Indebtedness" and, together with the Indebtedness described in clauses (ii) and (iii) above being herein called the "Existing Indebtedness"). On and as of the Initial Borrowing Date, all of the Existing Indebtedness and the Convertible QUIPS (to the extent not converted into the right to receive Initial Convertible QUIPS Conversion Payments) shall be obtainedoutstanding after giving effect to the Transaction and the other transactions contemplated hereby without any default or event of default existing thereunder or arising as a result of the Transaction and the other transactions contemplated hereby (except to the extent amended or waived by the parties thereto on terms and conditions reasonably satisfactory to the Agents and the Required Lenders), and there shall not be any amendments or modifications to the Existing Indebtedness Agreements or the Convertible QUIPS Documents other than as requested or approved by the Agents or the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Vertis Inc)
Existing Indebtedness. If requested by (i) The Parent, the Company Borrowers and their respective Restricted Subsidiaries shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions have no Indebtedness for borrowed money outstanding as are necessary of the Closing Date other than under the indentures listed Term Loan Facility, the Senior Notes, the Senior Subordinated Notes, the ABL Facility and the other Indebtedness permitted by Section 7.03 and (ii) the Parent, the Borrowers and their respective Subsidiaries shall have repaid in item full all Indebtedness outstanding under the Existing Credit Facility, together with all accrued but unpaid interest, fees and other amounts owing thereunder (iiiother than (A) contingent indemnification obligations not yet due and payable and (B) obligations with respect to Existing Letters of Section 4.16 Credit and (i) all commitments to lend or make other extensions of the Company Disclosure Letter credit thereunder shall have been terminated, (collectively, “Existing Debt Documents”ii) all security interests in respect of, and Liens securing, the Indebtedness and other obligations thereunder created pursuant to the security documentation relating thereto shall have been terminated and released, and the Agent shall have received all such releases as may have been reasonably requested by the Agent, which releases shall be in form and substance reasonably satisfactory to Agent, including, without limiting the foregoing, if applicable, (a) proper termination statements (Form XXX-0, XXXX 0X or the appropriate equivalent) for filing under the Uniform Commercial Code or equivalent statute or regulation of each jurisdiction where a financing statement or application for registration (Form XXX-0, XXXX 0X or the Transactionsappropriate equivalent) was filed with respect to the Parent, including delivering the Borrowers or causing a Subsidiary to deliver any such notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of officer certificates and opinions of counsel required to be delivered thereunder their respective Subsidiaries in connection with the Transactions. If requested by security interests created with respect to the Existing Credit 119 Facility and (b) terminations or reassignments of any security interest in, or Lien on, any patents, trademarks, copyrights, or similar interests of the Parent, the Company shall provide commercially reasonable cooperation to Parent Borrowers or any of their respective Subsidiaries and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the closing (or such other date thereafter selected by Parent) and the procurement of customary payoff letters and other customary release documentation in connection therewith or (b) obtaining any consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder. In furtherance of the foregoing, if requested by Parent, the Company shall and shall cause its Subsidiaries to execute and deliver such customary notices, agreements, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in each case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.16 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) unreasonably interfere with the normal operations of the Company and its Subsidiaries, (v) include any actions that the Company reasonably believes could (w) violate its certificate of incorporation or bylaws (or comparable documents), (x) violate any applicable law, (y) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of, any agreement or other instrument binding upon such Person or to which such Person is a party, or (z) result in the creation or imposition of any lien on any asset of such Person, (vi) to waive or amend any terms of this Agreement or (vii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability than with respect to any matters relating Existing Letters of Credit, Holdings and its Subsidiaries shall have made arrangements reasonably satisfactory to the this Section 6.16. Parent shall defend, indemnify Agent and hold harmless any the Company, its Subsidiaries and any of their Representatives from, against and in respect Joint Lead Arrangers for the cancellation of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses resulting from or incurred in connection with the cooperation hereunder. Notwithstanding this Section 6.16 or anything in this Agreement to the contrary, each letters of the parties hereto agrees that it is not a condition to the Closing that the payoff letters, consents, amendments or other similar actions described in this section be obtainedcredit outstanding thereunder.
Appears in 1 contract
Samples: Credit Agreement (YCC Holdings LLC)
