Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor. (b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including to (v) maintain in effect the Equity Commitment Letter, (w) satisfy on a timely basis all conditions applicable to Buyer in such Equity Commitment Letter that are within its control, (x) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing. (c) Seller will, and will cause the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c). (d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicable.
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Samples: Stock Purchase Agreement, Stock Purchase Agreement (Armstrong Flooring, Inc.)
Financing Activities. (a) Each of Buyer and Merger Sub acknowledges and agrees that Seller, the CompanyStockholders’ Representatives, the Company Subsidiaries, and their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability to any Person under, for any financing that Buyer or Merger Sub may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility thereforTransactions.
(b) Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing and the Financing Commitment Letter, (ii) enter into definitive financing agreements with respect to the Financing, so that such agreements are in effect as promptly as practicable but in any event no later than the Closing Date, (iii) consummate the Financing at or prior to the Closing, and (iv) enforce its rights under the Financing Commitment Letter. Buyer shall provide to the Company copies of all documents relating to the Financing and shall keep the Company reasonably informed of material developments in respect of the financing process relating thereto. Prior to the Closing, Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Financing Commitment Letter or other documentation relating to the Equity Financing other than which would reasonably be expected to increase adversely effect Buyer or Merger Sub’s ability to consummate the Transactions without the prior written consent of the Company. Notwithstanding anything in this Agreement to the contrary, the Financing Commitment Letter may be amended, modified, supplemented, restated or superseded at the option of Buyer after the date hereof but prior to the Closing (a “New Financing Commitment”); provided that the terms of any New Financing Commitment shall not (1) reduce the aggregate amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including (2) expand upon (or alter in any manner adverse to (vthe interests of the Company) maintain the conditions precedent to the Financing as set forth in effect the Equity Financing Commitment Letter, or (w3) satisfy on a timely basis all conditions applicable reasonably be expected to Buyer in such Equity Commitment Letter that are within its control, (x) consummate the Equity Financing at or prior to delay the Closing. In such event, (y) enforce its rights (including through litigation) under the Equity definitions of “Financing Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity ,” “Financing no later than the Closing.
(c) Seller will, and will cause the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customerCommitments” and anti-money laundering rules“Financing” contained herein shall be deemed to include any Financing Commitments or documents related thereto not so amended, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentationsmodified, information memossupplemented, offering memoranda restated or other marketing and disclosure documents and customary information in connection therewithsuperseded, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection together with the Equity New Financing and the Debt FinancingCommitment. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller Further, for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not if the Equity Financing or the Debt Financing (or any alternative financing) has not been obtained, Buyer and Merger Sub shall continue to be obligated to consummate the transactions contemplated by this Agreement Transactions subject only to the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2 7.1 and to Buyer’s termination rights under Article IXVIII, if applicable.
(c) If, notwithstanding the use of commercially reasonable efforts by Buyer to satisfy its obligations under Section 6.10(b), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify the Company of such expiration or termination and the reasons therefor and (ii) use its commercially reasonable efforts promptly to arrange for alternative financing (“Replacement Financing”) (which shall be sufficient to pay the Required Amount from other sources and which do not, without the prior consent of the Company, include any conditions of such alternative financing that are more onerous than or in addition to the conditions set forth in the Financing) to replace the financing contemplated by such expired or terminated commitments or arrangements.
(d) The Company shall provide to Buyer all cooperation that is reasonably requested by Buyer in connection with the Financing, including the following: (i) causing the Company’s senior officers to participate in a reasonable number of meetings, presentations, sessions with rating agencies or other customary syndication activities; (ii) assisting with the preparation of appropriate and customary materials for rating agency presentations, bank information memoranda and similar documents reasonably required in connection with the Financing; (iii) assisting with the preparation of any pledge and security documents, any loan agreement, currency or interest hedging agreement and other definitive financing documents on terms satisfactory to Buyer, provided that no obligation of the Company or the Subsidiaries under any such document or agreement shall be effective until the Effective Time; (iv) facilitating the pledging of collateral, provided that no pledge shall be effective until the Effective Time; (v) furnishing on a confidential basis to Buyer and the Financing Sources as promptly as practicable, such financial information regarding the Company and the Subsidiaries as may be reasonably requested by Buyer, including the financial statements required by paragraph 3 of Exhibit B to the Financing Commitment Letter; (vi) requesting that the administrative agent and collateral agent under the Existing Credit Agreement provide the Payoff Letter and related ancillary agreements; (vii) providing requested officer’s certificates and representation letters to the extent required by the terms of the Financing Commitment Letter; (viii) using commercially reasonably efforts to ensure that the syndication efforts of the Financing Sources benefit from the existing lending relationships of the Company and the Subsidiaries; (ix) causing the taking of corporate and other actions by the Company and the Subsidiaries to permit completion of the Financing; (x) facilitating the execution and delivery (at the Closing) of definitive documents required by the terms of the Financing Commitment Letter related to the Financing; and (xi) causing to be prepared and rendered requested opinions of counsel, in each of the foregoing cases as may be necessary and customary in connection with a financing substantially similar to the Financing; provided that, notwithstanding anything in this Agreement to the contrary, until the Effective Time occurs neither the Company or the Subsidiaries shall (1) be required to pay any commitment or other similar fee, (2) have any liability or obligation under any other agreement or any related document or any other agreement or document related to the Financing, or (3) be required to incur any other liability in connection with the Financing contemplated by the Financing Commitments. Buyer shall indemnify and hold harmless, the Company and the Subsidiaries, and their respective officers, employees and representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith, except in the event such liabilities or losses arose out of or result from the willful misconduct of the Company or the Subsidiaries. Notwithstanding anything in this paragraph, such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company or the Subsidiaries. Prior to the Closing, Buyer shall promptly reimburse the Company for all reasonable out-of-pocket expenses incurred by it in connection with such cooperation.
Appears in 1 contract
Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability Parent will use reasonable best efforts to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Equity Financingproceeds of the Financing at the Closing on the terms and subject only to the conditions set forth in the Financing Commitments, including using reasonable best efforts to (vi) maintain in effect and comply with the Equity Commitment LetterFinancing Commitments, (wii) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions set forth in the Financing Commitments or, subject to Sections 6.15(b) and 6.15(c), on other terms reasonably satisfactory to Parent, (iii) satisfy on a timely basis all conditions applicable to Buyer in such Equity Commitment Letter the Financing Commitments and the definitive agreements related thereto that are within its controlcontrol (or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent contained in the Financing Commitments or such definitive agreements related thereto), (xiv) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment LetterClosing Date, including seeking any specific performance of the parties thereunder and (z) using its reasonable best efforts to cause the financing sources Financing Sources and any other Persons providing financing committing to fund the Equity Financing no later to fund the Financing at the Closing (including taking enforcement actions to cause the Financing Sources and such other Persons to provide the Financing), and (v) comply with its covenants and other obligations under the Financing Commitments and the definitive agreements relating to the Financing that are within its control.
(b) Without the prior written consent of the Company, which shall not unreasonably be withheld or delayed, Parent will not agree to, permit, or otherwise consent to any amendment of, supplement or modification to, or waiver under, the Financing Commitments or the definitive agreements relating to the Financing if such amendment, supplement, modification, or waiver (i) would reduce the aggregate cash amount of proceeds of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to such fees and original issue discount contemplated by the Debt Commitment Letter in effect on the date hereof unless the Debt Financing is increased by such amount), (ii) would impose new or additional (or adversely modify any existing) conditions or otherwise expand any of the conditions to the receipt of the Financing from those set forth in the Financing Commitments on the date of this Agreement, (iii) would amend or modify any of the conditions precedent to the Financing in any manner adverse to the interest of the Company, (iv) would adversely impact the ability of Parent to enforce its rights in respect of the Financing Commitments, (v) would be on terms that are less favorable to Parent than those in the ClosingFinancing Commitments as in effect on the date of this Agreement, or (vi) would otherwise reasonably be expected to prevent or materially delay the Closing Date or the ability of Parent to consummate the Transactions; provided, however, Parent may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement if the addition of such parties does not add new or additional (or adversely modify any existing) conditions, or otherwise expand any of the conditions, to the consummation of the Debt Financing. In addition, Parent shall not agree to, permit, or otherwise consent to any amendment of, supplement or modification to, or waiver under, the Financing Commitments or the definitive agreements relating to the Financing unless Parent notifies the Company of, and promptly provides the Company with such information as it may reasonably request in connection with, any such amendment, supplement, modification, or waiver. For purposes of this Agreement, references to either of the “Commitment Financings” will include such documents as permitted or required by this Section 6.15 to be amended, modified, supplemented, or waived, in each case from and after the date of such amendment, supplement, modification, or waiver.
(c) Seller willIf any of the Financing or either of the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated or otherwise become, or is reasonably expected to become, unavailable prior to the Closing, in whole or in part, for any reason, (i) Parent shall promptly notify the Company thereof (and the reason for any such unavailability), and will cause the Company and the Company Subsidiaries to, and (ii) Parent will use its commercially reasonable best efforts promptly to cause its Affiliates arrange for and its obtain alternative financing from other sources on terms and their respective Representatives toconditions not materially less favorable, taken as a whole, to Parent than the terms and conditions of the Financing contained in such Financing Commitment (including under any related fee letters) to replace the Financing contemplated by such expired or terminated or unavailable Financing Commitment (“Alternative Financing”); provided that, in each case at Buyer’s sole cost any event, such Alternative Financing shall not, without the prior written consent of the Company, be on terms and expense, provide Buyer all cooperation reasonably requested by Buyer conditions that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing are less favorable to be incurred by Buyer, the Company and/or from a conditionality or enforceability perspective than the terms and conditions of such Financing Commitment. True, complete, and correct copies of each commitment letter and other agreement relating to the Alternative Financing (the “Alternative Commitment Letter”) will be promptly provided to the Company, and Parent will promptly provide the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around with such information as it may reasonably request regarding such Alternative Financing and the Closing (applicable financing sources. If applicable, references in this Agreement to the “Debt Financing”)” and/or “Equity Financing,” as applicable, will include “Alternative Financing,” any reference to the “Debt Commitment Letter” and/or “Equity Commitment Letter,” as applicable, will include the “Alternative Commitment Letter” and causing the conditions in any reference to definitive financing agreements governing the Equity Financing and related to the Debt Financing to be satisfiedand/or the Equity Financing, which cooperation shall as applicable, will include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to definitive financing sources, (iv) providing access agreements related to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Alternative Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For Parent shall give the Company prompt written notice (i) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to either Financing Commitment of which Parent becomes aware, and (ii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination, or repudiation by any party to such Financing Commitment, or (B) material dispute or disagreement between or among any parties to such Financing Commitment (but excluding, for the avoidance of doubt, whether or not any ordinary course negotiations with respect to the Equity Financing or terms of the either the Debt Financing (or Equity Financing). Without limiting the foregoing or any alternative financing) has been obtainedother provision contained herein, Buyer Parent shall continue keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to be obligated to arrange and consummate the transactions contemplated by this Agreement subject only Financing (including material developments relating to the satisfaction or waiver Financing) and provide to the Company copies of executed copies of the conditions set forth definitive documents related to the Financing (provided that any fee letters, engagement letters, or other agreements that, in Section 8.1 accordance with customary practice, are confidential by their terms, and Section 8.2 that do not affect the conditionality or amount of the Financing, may be redacted in a customary manner so as not to disclose economic terms) and to Buyer’s termination rights under Article IX, if applicablecopies of any written notices or communications described in the preceding sentence.
Appears in 1 contract
Financing Activities. (a) Buyer acknowledges and agrees that Seller, the CompanyUpon request of Parent or Purchaser, the Company Subsidiaries, their respective Affiliates shall provide reasonable cooperation and their respective directors, officers, employees, agents assistance to Parent and representatives have no responsibility for, and shall not incur any liability to any Person under, any financing that Buyer may raise Purchaser in connection with the transactions contemplated hereby arrangement of the Financing as may be reasonably requested by Parent or Purchaser and that is necessary, customary or advisable in connection with Parent’s and Purchaser’s efforts to obtain the Financing (provided that such requested cooperation and assistance does not unreasonably interfere with the ongoing business of the Company), including the following actions by the Company: (i) participating in a reasonable number (taking into account the nature of the Financing) of meetings with (including using its reasonable best efforts to participate in a reasonable number of one-on-one meetings with) the Financing Sources and any cooperation provided pursuant other prospective lenders and purchasers of the Financing (and using its reasonable best efforts to this Section 6.7 (other than, in cause the case members of senior management and Representatives of the Company to participate in such meetings), and due diligence sessions, in each case in connection with all or any portion of the Company SubsidiariesFinancing; (ii) assisting Parent and Purchaser and their Financing Sources in the preparation of customary presentations, for obligations incurred upon offering documents, bank information memoranda, financial information as reasonably requested by Parent to prepare business projections of the Surviving Corporation, lender and investor presentations, prospectuses and other similar customary materials to the extent such information is of the type and form customarily included in bank information memoranda; (iii) cooperating reasonably with the Financing Sources’ customary due diligence; (iv) assisting Parent with the preparation of (but subject to not execution of) any guarantee, pledge and security documents reasonably requested by Parent or the occurrence Financing Sources and otherwise reasonably facilitating the provisions of the Closing) or immediately after giving guarantees, pledging of collateral and granting of security interests (it being understood that such documents will not take effect to until the Closing). Any offering materials ; (v) requesting its independent accountants to provide reasonable assistance to Parent and other documents prepared by or Purchaser consistent with their customary practice (including to provide consent to Parent and Purchaser to prepare and use their audit reports relating to the Company on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities customary terms in connection with the transactions contemplated herebyFinancing); (vi) cooperating reasonably in connection with the pay-off of existing indebtedness and the release of related encumbrances, which includes and Parent’s and Purchaser’s efforts to effect the replacement or backing of any outstanding letter of credit maintained or provided by the Company at and effective as of the Closing; (vii) at least five (5) Business Days prior to the Closing, providing all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Closing; and (viii) cooperating reasonably with Parent to cause the Company’s Subsidiary DMIH Limited to transfer up to Fifteen Million Dollars ($15,000,000) to the Company as of the Closing Date in a manner that minimizes the incurrence of any applicable Taxes and the utilization of Tax assets or attributes in accordance with applicable Legal Requirements. Notwithstanding the foregoing, nothing in this Agreement will require the Acquired Companies to (A) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time, (B) enter into any definitive agreement that will be effective prior to the Effective Time, (C) give any indemnities that are effective prior to the Effective Time, or (D) provide any information provided by Sellerthe disclosure of which is prohibited or restricted under Applicable Law, the Companyis legally privileged or would result in a violation or breach of, the or default under, any agreement to which an Acquired Company Subsidiaries is a party. In addition, (1) no action, liability or obligation of any Acquired Company or any of their respective AffiliatesRepresentatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Financing will be effective until the Effective Time, and none of the Acquired Companies will be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (including being an issuer or other obligor with respect to the Financing) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time, and (2) any bank information memoranda or offering memorandumprospectuses or memoranda required in relation to the Financing will contain disclosure and financial statements reflecting the Surviving Corporation or its Subsidiaries as an obligor. Notwithstanding any other provision of this Agreement, banker’s book, lender presentation nothing in this Agreement will require (A) any officer or similar document, Representative of the Company to execute or deliver any Definitive Debt Documents or any other written offering materialsrelated documents, used certificates or opinions in connection with the Financing, (B) any debt officer or securities offering Representative of any of the Company’s Subsidiaries to execute or deliver any Definitive Debt Documents or any other related documents, certificates or opinions in connection with the Financing, or take any other action in connection with the Financing that could reasonably be expected to result in personal liability to such officer or Representative, (C) the members of the Company Board as of the date hereof to approve the Financing or any alternative financing or Definitive Debt Documents related thereto, or (D) any of the Acquired Companies to take any actions that become effective prior to the Effective Time with respect to their respective cash or other investment assets, including the deposit of cash with the Paying Agent (or any actions necessary to fund such Buyer financing shall include a conspicuous disclaimer deposit), if such actions would result in any material Taxes or losses attributable to the effect utilization by any of the Acquired Companies of any Tax assets or attributes (provided that none of Seller, the Company, restriction set forth in this clause (D) shall not apply to the Company Subsidiaries or their respective Affiliates extent Parent agrees to indemnify the Acquired Companies in full for such Taxes and each of their respective Representatives, has any responsibility for losses in the content of such document and disclaim all responsibility thereforevent that the Closing Date does not occur).
(b) Buyer Parent shall not agree touse its reasonable best efforts to take, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Equity FinancingFinancing on the terms and conditions described in the Financing Letters, including using reasonable best efforts to (vi) maintain in effect the Equity Commitment LetterFinancing Letters and, if entered into prior to the Closing, the definitive documentation with respect to the Financing contemplated by the Financing Letters (the “Definitive Debt Documents”), (wii) comply with its obligations under the Financing Letters and the Definitive Debt Documents, (iii) negotiate, execute and deliver the Definitive Debt Documents on terms and conditions (including flex provisions) contemplated by the Financing Letters, (iv) satisfy on a timely basis all conditions to funding that are applicable to Buyer Parent and Purchaser in such Equity Commitment Letter that are within its controlthe Financing Letters and Definitive Debt Documents, (xv) consummate the Equity Financing at or prior to contemplated by the Closing, Financing Letters and Definitive Debt Documents and (yvi) enforce its rights under the Financing Letters and Definitive Debt Documents in the event of a breach by the Financing Sources that impedes, prevents or unreasonably delays the Closing. Purchaser shall not agree to any amendment or modification of the Financing Letters after the date of this Agreement that would reasonably be expected to impede, prevent, unreasonably delay or otherwise adversely affect Purchaser’s ability to perform its obligations under this Agreement or to enforce its rights against the other parties to the Financing or the Definitive Debt Documents. In the event that all conditions to the Financing have been satisfied, Parent shall use its reasonable best efforts to cause the Financing Sources to fund such Financing in order to close the Merger. In furtherance and not in limitation of the foregoing, in the event that any portion of the Financing becomes unavailable on the terms and conditions (including through litigationthe flex provisions) under of the Equity Commitment LetterFinancing Letters, Parent shall use its reasonable best efforts to obtain alternative financing from alternative sources on terms and conditions not materially less favorable in the aggregate to Parent, Purchaser and the Surviving Corporation than those set forth in the Financing Letters and in an amount that is adequate (taking into account all other financial resources of Parent and Purchaser, including seeking any specific performance cash on hand and marketable securities of Parent, Purchaser, the parties thereunder Company and (ztheir respective Subsidiaries on the Closing Date) cause the financing sources and any other Persons providing financing to fund the Equity Required Amount (and in such an event, any reference herein to “Financing no later than Letters” or “Definitive Debt Documents” shall be deemed to include such alternative financing to the Closingextent then in effect).
(c) Seller willParent shall (i) keep the Company fully informed on a reasonably current basis of the status of its efforts to arrange the Financing, and will cause (ii) provide the Company with copies of all executed Definitive Debt Documents. Without limiting the generality of the foregoing, Parent and Merger Sub shall promptly upon becoming aware thereof notify the Company Subsidiaries to(A) of any breach (or threatened breach) or default (or any event or circumstance that, with notice or lapse of time or both, could reasonably be expected to give rise to any breach or default) by any party to the Financing Letters or Definitive Debt Documents, (B) of any material dispute or disagreement between or among any parties to a Financing Letter or the Definitive Debt Documents, and (C) if for any reason Parent or Purchaser at any time believes that it will use its commercially reasonable efforts not be able to cause its Affiliates obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Letters (subject to the flex provisions contained therein) or Definitive Debt Documents.
(d) Parent agrees to (i) indemnify, defend and its hold harmless the Acquired Companies and their respective Representatives tofrom and against any loss, in each case at Buyer’s sole cost and expensedamages, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary claim, cost, liability, obligation or expense suffered or incurred in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets arrangement of the Company Financing or any alternative financing and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary any information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information provided in connection therewith, including except (A) historical information relating thereto or any other information furnished in writing by or on behalf of the delivery of customary authorization letters to authorizing the distribution of information to financing sources, Acquired Companies for use therein and (ivB) providing access to the Books and Records extent arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Acquired Companies and (vii) assisting in Buyer’s preparationpromptly, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or of the Company, reimburse Seller the Acquired Companies for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives Acquired Companies in connection with providing the assistance contemplated by this Section 6.7(c)6.14. The provisions of this Section 6.14(d) shall survive the termination of this Agreement.
(d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rightside Group, Ltd.)
Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and Parent shall not incur any liability to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable use reasonable best efforts to obtain the Equity Financingproceeds of the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter no later than the Closing Date, including to using reasonable best efforts to: (vi) maintain in effect the Equity Debt Commitment Letter, (wii) satisfy on a timely basis all conditions within its control applicable to Buyer funding of the Debt Financing, (iii) promptly enter into definitive agreements with respect thereto and, upon satisfaction of the conditions set forth in such Equity the Debt Commitment Letter, draw the amount of the Debt Financing necessary so that Parent and Merger Subsidiary have sufficient funds to satisfy all of Parent’s and Merger Subsidiary’s obligations under this Agreement, including the payment of the Cash Merger Consideration and the payment of all fees and expenses of Parent and Merger Subsidiary related to the transactions contemplated by this Agreement, and (iv) comply with all of its obligations and enforce all of its rights under the Debt Commitment Letter. Parent shall, upon request from the Company from time to time, promptly inform the Company of the status of its efforts to arrange the Debt Financing or any Alternative Debt Financing. Parent shall give the Company prompt notice upon having Knowledge of any breach by any party of the Debt Commitment Letter or any termination of the Debt Commitment Letter. In the event Parent becomes aware that are within its controlany portion of the Debt Financing is unavailable in the manner or from the sources contemplated in the Debt Commitment Letter or it becomes reasonably likely that any portion of the Debt Financing will become so unavailable, Parent shall (x) promptly notify the Company in writing and will use reasonable best efforts to obtain alternative financing for such portion from alternative sources on commercially reasonable terms and on terms (including conditions, structure, covenants and pricing) not materially less beneficial to Parent than those contained in the Debt Commitment Letter (including any related fee letter) on the date hereof (the “Alternative Debt Financing”) and (y) obtain a new financing commitment letter or letters with respect to such Alternative Debt Financing. In the event any Alternative Debt Financing is obtained, all references to “Debt Financing” in this Agreement shall include such Alternative Debt Financing, all references to “Debt Commitment Letter” shall include any such new financing commitment letters and all references to “Financing Arrangers” shall include any providers of the Alternative Debt Financing. Parent shall promptly provide the Company with a true, correct, and complete copy of any new financing commitment letters related to the Alternative Debt Financing, together with any related exhibits, schedules, supplements, and term sheets, and a true, correct, and complete copy of any fee letter in connection therewith (subject to customary redactions). Parent will not consent to any amendment, restatement, replacement, supplement, termination, assignment, or modification to be made to, or any waiver of any provision (including any condition) or remedy under, the Debt Commitment Letter without the prior written consent of the Company, to the extent such amendment, restatement, replacement, supplement, termination, assignment, modification, or waiver would individually or in the aggregate reasonably be expected to (i) materially delay or prevent the Closing, (ii) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) in each case necessary to consummate the Equity Financing transactions contemplated hereby less likely in any material respect to occur at or prior to the Closing, or (yiii) enforce its rights materially adversely impact the ability of Parent to timely consummate the transactions contemplated hereby; provided, however, that Parent may (including through litigationA) under amend the Equity Debt Commitment LetterLetter to add lenders, lead arrangers, bookrunners, agents, syndication agents, documentation agents, or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, (B) amend or otherwise modify the Debt Commitment Letter to implement any market flex provisions applicable thereto, or (C) otherwise amend, modify or replace, or agree to any waivers in respect of, the Debt Commitment Letter so long as, with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Debt Financing, or such amended, modified, replaced or waived terms would not, or would not reasonably be expected to, materially adversely impact the ability of Parent to timely consummate the transactions contemplated hereby. Parent shall keep the Company reasonably apprised of material adverse developments relating to the Financing, including seeking any specific performance of material dispute or disagreement between or among the parties thereunder and (z) cause to the financing sources and any other Persons providing financing Debt Commitment Letter with respect to the obligation to fund the Equity Debt Financing no later than or the Closing.
(c) Seller will, and will cause amount of the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfiedfunded at Closing (but excluding, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only ordinary course negotiations with respect to the satisfaction or waiver terms of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicableFinancing and/or the definitive documentation related thereto).
Appears in 1 contract
Financing Activities. (a) Buyer acknowledges and agrees that Seller, Prior to the Companydate hereof, the Company Subsidiarieshas executed a commitment letter with each of the financial institutions identified therein, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility fordated as of the date hereof (the “Commitment Letter”, and shall not incur any liability to any Person underthe commitments under the Commitment Letter, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided “Financing Commitment”), pursuant to this Section 6.7 (other thanwhich, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence terms and conditions of which, the Closing) or immediately after giving effect Financing Sources party thereto shall commit to lend the amounts set forth therein to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content purpose of such document and disclaim all responsibility thereforfunding the Transactions contemplated by this Agreement (the “Financing”).
(b) Buyer The Investors expressly agree and acknowledge that it is a condition to Closing under this Agreement and to the consummation of the Transactions, for the Company to obtain the Financing.
(c) Each Investor shall not agree touse its reasonable best efforts to take, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) obtain the Equity Financing, including to (v) and maintain in effect the Equity Financing and the Commitment Letters, (ii) negotiate and enter into the New Credit Agreement on terms and conditions no less favorable to the Company than those contained in the Financing Commitments (as such terms may be modified or adjusted in accordance with the terms of, and only within the limits of, any “flex” provisions set forth in the Financing Commitments (including as specified in any Fee Letter (as defined in the Commitment Letter)), so that such agreements are in effect on the Closing Date, (wiii) satisfy on a timely basis all conditions applicable to Buyer the Company or any Acquired Entity contained in such Equity the Financing Commitment Letter that are within its their control, (xiv) consummate the Equity Financing at the Closing, and (v) comply or prior cause its applicable Acquired Entities to comply with its obligations under the Commitment Letter. Subject to the terms and upon satisfaction of the conditions set forth in the Commitment Letter, the Investors shall use their reasonable best efforts (other than through Legal Proceedings) to cause the Financing Sources to provide the Financing on the Closing Date.
(d) Prior to the Closing, (y) enforce each Investor shall, shall cause its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller will, and will cause the Company and the Company Subsidiaries Acquired Entities to, and will shall use its commercially reasonable best efforts to cause its Affiliates and its and their respective Representatives torepresentatives, in each case at Buyer’s sole cost and expenseto provide to the other Investor, provide Buyer all cooperation that is reasonably requested by Buyer that is customary and necessary such other Investor in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by BuyerFinancing, including the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, following: (i) instructing appropriate causing such Investor’s Acquired Entities’ senior officers and employees of Seller, the Company and the Company Subsidiaries to be available, on participate in a reasonable basis and upon reasonable advance noticenumber of meetings, to meet presentations, sessions with rating agencies or other customary syndication activities (including meetings with ratings agencies, but no more than one “bank meeting” of prospective lenders and investors in customary presentations and due diligence sessions, Financing Sources); (ii) delivering assisting with the unaudited consolidated balance sheets preparation of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion appropriate and customary materials for rating agency presentations, bank information memoranda and similar documents reasonably required in connection with “know your customer” and anti-money laundering rules, the Financing (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sourcesprospective Financing Sources and using commercially reasonable efforts to identify such information that would constitute material, non-public information with respect to the Company and the Acquired Entities for purposes of United States federal securities laws if the Acquired Entities were public reporting companies); (iii) facilitating the granting of liens and pledging of collateral, provided that no security interest or pledge
A. Patriot Act of 2001; provided, that, notwithstanding anything in this Agreement to the contrary, until the Closing occurs, neither Investor nor any of their respective Acquired Entities shall (1) be required to pay any commitment or other similar fee, (iv2) providing access have any liability or obligation under any agreement or any document related to the Books and Records and Financing, or (v3) assisting in Buyer’s preparation, execution and delivery of definitive documentation be required to incur any other liability in connection with the Equity Financing and contemplated by the Debt FinancingFinancing Commitment. Buyer Notwithstanding anything in this paragraph, such requested cooperation shall promptly upon request by Seller and from time not unreasonably interfere with the ongoing operations of the Company or the Acquired Entities.
(e) The Investors hereby consent to time pay to or reimburse Seller for all the reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate use of Seller or their Representatives respective Acquired Entities’ logos in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance Financing, provided that such logos are used in a manner that is not intended to, not reasonably likely to and does not harm or disparage such Acquired Entity or any of doubt, whether their respective products or not the Equity Financing services or the Debt Financing (reputation or goodwill of such Acquired Entity or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction of its respective products or waiver of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicableservices.
Appears in 1 contract
Financing Activities. (a) Each Buyer Party acknowledges and agrees that the obligations of the Buyer Parties to consummate the Transactions (including the Mergers) are not contingent upon obtaining any financing of any kind. Prior to the Closing, the Company shall, and shall cause the Subsidiaries to, use commercially reasonable efforts to provide, and shall use commercially reasonable efforts to cause any Representative retained by the Company to provide, all cooperation reasonably requested by Buyer or its Affiliates in connection with the Financing and any offering(s) of debt or equity securities in lieu of the Financing, including: (i) furnishing Buyer and Financing Sources, as promptly as reasonably practicable, with the Required Information; (ii) using commercially reasonable efforts to cause its current or former independent accountants to provide assistance and cooperation in the Financing (and any offerings of debt or equity securities in lieu of the Financing), including (A) providing any necessary written consents to use their audit reports relating to the Company and the Subsidiaries and to be named as an “Expert” in any document related to the Financing and (B) providing any customary “comfort” letters (including customary “negative assurance” comfort); (iii) executing and delivering (or using commercially reasonable efforts to obtain) at the Closing customary certificates and consents in connection with the Financing; (iii) providing the Financing Sources, at least three (3) Business Days prior to the Closing Date (to the extent requested at least eight (8) Business Days prior to the Closing Date), with all documentation and other information required by regulatory authorities and as reasonably requested by Buyer with respect to the Company and the Subsidiaries in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, Title III of Pub. L. 107-56 (signed into law October 26, 2001); and (iv) consenting to the use of the Company’s and the Subsidiaries’ trademarks, service marks or logos in connection with the Financing prior to the Closing; provided that (A) such requested cooperation shall not unreasonably interfere with the business or the ongoing operations of the Company and/or the Company’s Subsidiaries; (B) the Company and the Subsidiaries shall not be required to pay any expenses or commitment or other similar fee in connection with the Financing (or any offerings of debt or equity securities in lieu of the Financing); (C) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the financing contemplated by the Debt Commitment Letter (or any offerings of debt or equity securities in lieu of such financing) that is not contingent upon the Closing or that would be effective prior to the Closing Date , (D) nothing in this Section 7.10(a) shall require cooperation to the extent that it would (1) cause any condition to the Closing set forth in Sections 8.1 or 8.2 to not be satisfied or otherwise cause any breach of this Agreement or (2) reasonably be expected to conflict with or violate the Company’s organizational documents or any Law, or result in the contravention of, or result in a violation or breach of, or default under, any Material Contract and (E) nothing shall obligate the Company or any of its Subsidiaries to provide, or cause to be provided, any legal opinion by their counsel. Buyer acknowledges and agrees that Seller, none of the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, managers, directors, officers, employees, representatives and advisors (including legal, financial and accounting advisors) shall incur any offering memorandum, banker’s book, lender presentation liability to any Person under or similar document, or any other written offering materials, used in connection with the Financing or any offering(s) of debt or equity securities offering or other such Buyer financing shall include a conspicuous disclaimer in lieu of the Financing prior to the effect that none Closing. Except in the case of Sellerlosses arising or resulting from Fraud, intentional or willful misrepresentation, gross negligence or willful misconduct, in each case as determined by a final, non-appealable judgment by a court of competent jurisdiction, Buyer shall indemnify and hold harmless the Company, the Company Subsidiaries or and their respective Affiliates, managers, directors, officers, employees and Representatives from and against any and all losses suffered or incurred by them in connection with their cooperation hereunder and compliance with Section 7.13 and the arrangement of the Financing (and any offering(s) of debt or equity securities in lieu of the Financing) and any information utilized in connection therewith (other than information provided by or on behalf of the Company for use in connection therewith). Buyer shall, upon the request of the Company, promptly reimburse the Company for all documented out-of-pocket costs or expenses reasonably incurred by the Company, the Subsidiaries and their Affiliates in connection with cooperation provided for in this Section 7.10(a) and each of their respective Representatives, has any responsibility compliance with Section 7.13 (but only for third party costs and expenses that otherwise would not have been incurred but for the content requirements of such document and disclaim all responsibility thereforSection 7.13 or cooperation with the Financing or any offering(s) of debt or equity securities in lieu of the Financing).
(b) Buyer shall not agree to(i) use commercially reasonable efforts to take, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Equity Financing on the terms and conditions described in the Debt Commitment Letter (including, to the extent required in accordance with the terms thereof, the exercise of so-called “flex” provisions in the Fee Letter) or any offering(s) of debt or equity securities in lieu of the Financing, including using commercially reasonable efforts to (v) maintain in effect the Equity Commitment Letter, (wA) satisfy on a timely basis all conditions precedent to funding applicable to Buyer in such Equity the Debt Commitment Letter that are within its control, (x) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller will, and will cause the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing Agreements to be incurred by Buyerentered into pursuant thereto and, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of all of the conditions set forth in Section Sections 8.1 and 8.2, such Debt Commitment Letter and such Financing Agreements, to consummate the Financing no later than the Closing in accordance with Section 8.2 2.2, and (B) maintain in full force and effect the Debt Commitment Letter until the funding of the Financing or any offering(s) of debt or equity securities in lieu of the Financing and unless the Buyer shall have consummated an offering of debt or equity securities in lieu of the Financing, to Buyer’s termination rights under Article IXnegotiate, execute and deliver definitive agreements prior to the Closing with respect to such Financing consistent with the terms and conditions contemplated by the Debt Commitment Letter (subject to any applicable “flex” provisions of the Fee Letter) or, if applicable, on terms that are no less favorable to Buyer than the terms contained in the Debt Commitment Letter (taking into account any “flex” provisions applicable thereto) (the “Financing Agreements”), (ii) upon the satisfaction of all conditions precedent to funding in the Debt Commitment Letter and the Financing Agreements, enforce the obligations of the Financing Sources to fund the Financing, and (iii) comply in all material respects with its obligations under the Debt Commitment Letter and the Financing Agreements, to the extent within its control. Upon the reasonable request of the Company, Buyer shall reasonably promptly update the Company in reasonable detail of any material developments concerning the status of the Financing. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (subject to any applicable “flex” provisions of the Fee Letter), (A) Buyer shall notify the Company, and (B) Buyer shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain alternative financing from alternative sources (the “Alternative Financing”), upon terms and conditions not materially less favorable to Buyer than the terms and conditions set forth in the Debt Commitment Letter, in an aggregate amount, together with cash-on-hand and available capacity under Buyer’s revolving credit facility, that would be sufficient to make the payments set forth in Section 3.9(a) and Section 3.10(c)(i). In the event any Alternative Financing is obtained in accordance with this Section 7.10(b), references in this Agreement to the Financing shall be deemed to refer to such Alternative Financing to the extent the Financing has been replaced thereby, if one or more commitment letters are entered into in connection with such Alternative Financing (such commitment letters, the “Alternative Debt Commitment Letter”), references in this Agreement to the Debt Commitment Letter shall be deemed to refer to the Alternative Debt Commitment Letter to the extent the Debt Commitment Letter has been replaced thereby, and all obligations of Buyer and the Company pursuant to this Section 7.10 shall be applicable thereto to the same extent as the obligations of Buyer and the Company with respect to the Financing replaced thereby. Buyer shall have the right from time to time to amend, supplement or otherwise modify, or waive any of its rights under, the Debt Commitment Letter for all or any portion of the Financing from the same or alternative financing sources; provided that Buyer shall not permit or consent to (1) any amendment, supplement or modification to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, modification or waiver (w) imposes new or additional conditions, or otherwise expands any of the conditions, to the initial funding of the Financing at Closing from those set forth therein on the date hereof, (x) would reasonably be expected to materially and adversely impact the ability of Buyer to enforce its rights against the other parties to the Debt Commitment Letter, (y) would reasonably be expected to materially impair, materially delay or prevent the availability of all or a portion of the Financing or the consummation of the Transactions, or (z) would reduce the aggregate cash amount of the Financing to an amount, together with cash-on-hand and available capacity under Buyer’s revolving credit facility, that is not sufficient to make the payments set forth in Section 3.9(a) and Section 3.10(c)(i), or (2) early termination of the Debt Commitment Letter (other than in connection with an Alternative Financing or any offering(s) of debt or equity securities in lieu of the Financing). Buyer shall furnish to the Company a copy of any amendment, modification or waiver of the Debt Commitment Letter following execution thereof, in each case, to the extent entered into prior to the Closing. Buyer shall promptly notify the Company in writing (I) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to the Debt Commitment Letter or Financing Agreement of which Buyer obtains knowledge, (II) of the receipt by Buyer or any of its Affiliates or Representatives of any written notice or other written communication from any Financing Source with respect to any actual, threatened or alleged material breach, default, termination or repudiation by any party to the Debt Commitment Letter or any Financing Agreement or any provision of the Financing contemplated pursuant to the Debt Commitment Letter or Financing Agreement (including any proposal by any Financing Source to withdraw, terminate or make a material change in the terms of (including the amount of Financing contemplated by) the Debt Commitment Letter), (III) if for any reason Buyer believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter or the Financing Agreements and (IV) of the termination or expiration prior to Closing of the Debt Commitment Letter or Financing Agreement. As soon as reasonably practicable, Buyer shall provide any material information reasonably requested by the Company relating to any of the circumstances referred to in this Section 7.10(b).
(c) Notwithstanding anything to the contrary in this Section 7.10 or otherwise in this Agreement, following the consummation of any offering or offerings of equity or debt securities in lieu of the Financing, Buyer shall have the right in its sole discretion to cancel or terminate any and all of the commitments under the Debt Commitment Letter, so long as after giving effect to such cancellation or termination, Buyer shall maintain available cash-on-hand, committed financing (including under any portion of the Debt Commitment Letter) and available capacity under its revolving credit facility sufficient in the aggregate to enable Buyer to consummate the Transactions on the Closing Date, including to pay the payments set forth in Section 3.9(a) and Section 3.10(c)(i).
Appears in 1 contract
Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and Parent shall not incur any liability use its reasonable best efforts to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, as promptly as reasonably possible, all things necessary, proper or advisable to arrange and obtain the Equity Financingproceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter (including as such terms and conditions may be amended, modified or waived in accordance with Section 4.07(b) or pursuant to any “market flex” provisions in the Fee Letter), including to using reasonable best efforts to: (vi) maintain in effect the Equity Debt Commitment Letter, (wii) satisfy satisfy, or cause to be satisfied, on a timely basis all conditions applicable to Buyer in such Equity Parent obtaining the Debt Financing set forth therein (or obtain a waiver thereof), (iii) negotiate and enter into definitive agreements with respect to the Debt Financing (the “Financing Agreements”) on the terms and conditions contemplated by the Debt Commitment Letter (including as such terms and conditions may be amended, modified or waived in accordance with Section 4.07(b) or pursuant to any “market flex” provisions in the Fee Letter) or on other terms that are within its controlacceptable to the Debt Financing Sources and Parent, which terms and conditions shall not materially expand upon the conditions to Closing or other contingencies to the funding on the Closing Date of the Debt Financing as set forth in the Debt Commitment Letter, (xiv) pay all commitment fees or other fees required by the Debt Commitment Letter to be paid as they become due, and (v) consummate the Equity Debt Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under time the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing Closing is required to fund the Equity Financing no later than the Closingoccur pursuant to Section 1.2.
(cb) Seller willParent shall use reasonable best efforts to provide the Company with reasonably prompt written notice, and will cause in any event within ten (10) Business Days of becoming aware, of any of the Company and following, to the Company Subsidiaries to, and will use its commercially reasonable efforts extent occurring prior to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, Closing: (i) instructing appropriate officers and employees any material breach or default by any party to the Debt Commitment Letter or any Financing Agreement of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessionswhich Parent becomes aware, (ii) delivering the unaudited consolidated balance sheets receipt of any written notice or other written communication from any Person with respect to any (x) breach, default, termination or repudiation by any party to the Debt Commitment Letter or (y) dispute or disagreement between or among any parties to the Debt Commitment Letter (other than any customary negotiations with respect to the terms of the Company and Debt Financing), solely to the Company Subsidiaries as extent such disagreement or dispute relates to the termination of, or the satisfaction of September 30the conditions to, 2018 as soon as practicable following the obligation of the Debt Financing Sources party thereto to fund their completion and customary information in connection with “know your customer” and anti-money laundering rulescommitments thereunder, (iii) providing customary if and reasonable assistance with respect when Parent becomes aware of the occurrence of any event or development that could reasonably be expected to Buyer’s preparation have a material and adverse impact on the ability of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery Parent to obtain any portion of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction Debt Commitment Letter (other than as a result of the failure or waiver potential failure of the conditions set forth in Article 5 to be satisfied), and (iv) of any expiration or termination of the Debt Commitment Letter. Parent shall provide the Company executed copies of the Financing Agreements entered into prior to the Closing Date (provided that any fee letters, engagement letters or other agreements that are confidential by their terms may be redacted in a manner so as not to disclose such terms that are so confidential, including to remove fees, pricing and other economic terms) and copies of any of the written notices or communications described in the preceding sentence; provided, however, that nothing in this sentence or the immediately preceding sentence shall require Parent to disclose any information that (A) is subject to attorney-client privilege or consists of attorney work product, (B) the disclosure of which would result in the breach of any of Parent’s confidentiality obligations set forth in any Contract, or (C) the disclosure of which would be prohibited under applicable Law.
(c) If any portion of the Debt Financing becomes, or would reasonably be expected to become, unavailable for any reason on the terms and conditions contemplated in the Debt Commitment Letter, Parent shall use reasonable best efforts to obtain alternative financing, including from alternative sources, on terms not materially less favorable, taken as a whole, than those set forth in the Debt Commitment Letter, in an amount sufficient to replace any unavailable portion of the Debt Financing and which do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions set forth in the Debt Commitment Letter (other than conditions that would not reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated hereby) (“Alternative Financing”) as promptly as practicable following the occurrence of such event. Thereafter, all references to the Debt Financing shall be deemed to include such Alternative Financing, and all references to the Debt Commitment Letter and Debt Documents shall include the commitment letter and any applicable documents for the Alternative Financing, as applicable. Promptly following the Company’s reasonable request, Parent shall use reasonable best efforts to update the Company regarding the status of its efforts to arrange any Alternative Financing; provided, however, that Parent shall not be required to disclose any information that (A) is subject to attorney-client privilege or consists of attorney work product, (B) the disclosure of which would result in the breach of any of Parent’s confidentiality obligations set forth in any Contract, or (C) the disclosure of which would be prohibited under applicable Law.
(d) Parent shall not permit, without the prior written consent of the Company, any material amendment, modification, supplement, replacements or restatement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or any Financing Agreement that would or would reasonably be expected to (i) reduce the aggregate amount of net cash proceeds available from the Debt Financing below the amount necessary to finance the transactions to be consummated on the Closing Date, or (ii) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing, in each case, in a manner that would reasonably be expected to (A) materially delay or prevent consummation of the transactions contemplated hereby to be consummated on the Closing Date, (B) make the funding of any portion of the Debt Financing (or satisfaction of any condition to obtaining any portion of the Debt Financing) materially less likely to occur, or (C) adversely affect the ability of Parent to enforce its rights against any other party to any Financing Agreement (collectively, with the Debt Commitment Letter, the “Debt Documents”) or the ability of Parent to consummate the transactions contemplated hereby; provided that, notwithstanding the foregoing, (y) Parent shall be permitted to amend the Debt Commitment Letter to add lenders, agents, co-agents, arrangers, bookrunners, managers or other roles under the Debt Commitment Letter and (z) any amendment or modification to any Debt Documents in connection with the exercise of any “market flex” shall not be prohibited or otherwise limited by this Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicable4.7(d).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Forrester Research, Inc.)
Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, and their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability to any Person under, for any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing and the Financing Commitments, (ii) enter into definitive financing agreements with respect to the Financing, so that such agreements are in effect as promptly as practicable but in any event no later than the Closing Date, (iii) consummate the Financing at or prior to the Closing, and (iv) enforce its rights under the Financing Commitments. Buyer shall provide to Seller copies of all documents relating to the Financing and shall keep Seller reasonably informed of material developments in respect of the financing process relating thereto. Prior to the Closing, Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter Financing Commitments or other documentation relating to the Equity Financing other than which could reasonably be expected to increase adversely effect Buyer’s ability to consummate the transactions contemplated in this Agreement without the prior written consent of Seller. Notwithstanding anything in this Agreement to the contrary, one or more Financing Commitments may be amended, modified, supplemented, restated or superseded at the option of Buyer after the date hereof but prior to the Closing (a “New Financing Commitment”); provided that the terms of any New Financing Commitment shall not (i) reduce the aggregate amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including to (v) maintain in effect the Equity Commitment Letter, (w) satisfy on a timely basis all conditions applicable to Buyer in such Equity Commitment Letter that are within its control, (x) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller will, and will cause the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering expand upon the unaudited consolidated balance sheets of conditions precedent to the Company and Financing as set forth in the Company Subsidiaries as of September 30Financing Commitment, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, or (iii) providing customary reasonably be expected to delay the Closing. In such event, the definitions of “Financing Commitments” and reasonable assistance with respect “Financing” contained herein shall be deemed to Buyer’s preparation of appropriate presentationsinclude any Financing Commitments or documents related thereto not so amended, information memosmodified, offering memoranda supplemented, restated or other marketing and disclosure documents and customary information in connection therewithsuperseded, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection together with the Equity New Financing and the Debt FinancingCommitment. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller Further, for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not if the Equity Financing or the Debt Financing (or any alternative financing) has not been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of the conditions set forth in Section Sections 8.1 and Section 8.2 and to Buyer’s termination rights under Article IXX, if applicable.
(c) If, notwithstanding the use of commercially reasonable efforts by Buyer to satisfy its obligations under Section 6.10(b), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify Seller of such expiration or termination and the reasons therefor and (ii) use its commercially reasonable efforts promptly to arrange for alternative financing (“Replacement Financing”) (which shall be sufficient to pay the Required Amounts from other sources and which do not, without the prior consent of Seller, include any conditions of such alternative financing that are more onerous than or in addition to the conditions set forth in the Financing) to replace the financing contemplated by such expired or terminated commitments or arrangements.
(d) Prior to the Closing, Seller shall cause the Company and the Company Subsidiaries to provide to Buyer, and Buyer shall reimburse Seller for all out-of-pocket expenses for, all cooperation reasonably requested by Buyer that is necessary, reasonably required or customary in connection with the Financing, including the following: (i) causing the Company’s senior officers to participate in meetings, presentations, road shows, due diligence sessions (or other sessions with prospective lenders, investors and rating agencies), drafting sessions, sessions with rating agencies or other syndication activities; (ii) assisting with the preparation of appropriate and customary materials for rating agency presentations, offering documents, bank information memoranda and similar documents reasonably required in connection with the Financing; (iii) assisting with the preparation of any pledge and security documents, any loan agreement, currency or interest hedging agreement, and other definitive financing documents on terms satisfactory to Buyer, provided that no obligation of the Company or the Company Subsidiaries under any such document or agreement shall be effective until the Effective Time; (iv) facilitating the pledging of collateral, provided that no pledge shall be effective until the Effective Time; (v) furnishing on a confidential basis to Buyer and its financing sources, as promptly as practicable, such financial and other pertinent information regarding the Company and the Company Subsidiaries as may be reasonably requested by Buyer, including all financial statements and other financial data required by the Financing Commitments; (vi) furnishing such balance sheets, consolidated statements of income, cash flow statements and other financial information for dates and periods, as applicable, subsequent to the Financial Statements and Unaudited Interim Financial Statements (“Subsequent Period Financial Statements”) as would customarily be presented in offering documents to be utilized in connection with a financing substantially similar to the Financing and to cause the Company’s auditors to cooperate in connection with the preparation of and provide a customary comfort letter to Buyer and its financing sources; (vii) requesting that the administrative agent and collateral agent under any existing Indebtedness for Borrowed Money of the Company and the Company Subsidiaries provide a debt payoff letter and related ancillary agreements; (viii) providing requested officer’s certificates and representation letters; (ix) using commercially reasonably efforts to ensure that the syndication efforts of the financing sources benefit materially from the existing lending relationships of the Company and the Company Subsidiaries; (x) causing the taking of corporate and other actions by Seller, the Company and the Company Subsidiaries to permit the completion of the Financing; (xi) facilitating the execution and delivery (at the Closing) of definitive documents related to the Financing; and (xii) causing to be prepared and rendered requested solvency opinions, accountants’ comfort letters, accountants’ consent letters, surveys, title insurance and opinions of counsel, in each of the foregoing cases as may be necessary and customary in connection with a financing substantially similar to the Financing; provided that, notwithstanding anything in this Agreement to the contrary, until the Effective Time occurs, neither the Company or the Company Subsidiaries shall
(1) be required to pay any commitment or other similar fee, (2) have any liability or obligation under any loan agreement or any related document or any other agreement or document related to the Financing, or (3) be required to incur any other liability in connection with the Financing contemplated by the Financing Commitments. Buyer shall indemnify and hold harmless Seller, the Company and the Company Subsidiaries, and their respective officers, employees and representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith, except in the event such liabilities or losses arose out of or result from the willful misconduct of Seller, the Company or the Company Subsidiaries.
Appears in 1 contract
Financing Activities. (a) Buyer Parent acknowledges and agrees that Sellerthat, except to the extent otherwise set forth in this Section 6.11, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives Representatives have no responsibility for, and shall not incur any liability to any Person under, for any financing that Buyer Parent or any Affiliate of Parent may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to by this Section 6.7 (other than, in the case of the Company Agreement. Parent and the Company Subsidiaries, for obligations incurred upon (but subject each acknowledge and agree that Parent’s obligation to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with consummate the transactions contemplated hereby, which includes by this Agreement is not subject to any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility thereforcondition.
(b) Buyer Parent shall not agree (or shall cause its Affiliates to) use commercially reasonable efforts to take, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain consummate the Debt Financing contemplated by the Debt Commitment Letters so that the funds contemplated thereby are available as promptly as practicable but in any event no later than the Closing Date, including (i) complying with and maintaining in full force and effect the Debt Commitment Letters in accordance with the terms and subject to the conditions thereof until the Debt Financing is consummated, (ii) negotiating and entering into definitive financing agreements with respect to the Debt Financing on the terms and conditions contained in the Debt Commitment Letters (including any “flex” provisions contained in the Debt Commitment Letters or any fee letter) so that such agreements are in effect as promptly as practicable but in any event no later than the Closing Date (which definitive financing agreements shall not (1) reduce the aggregate amount of the Debt Financing to be funded on the Closing Date (including by increasing the amount of fees to be paid or original issue discount) from that contemplated in the Debt Commitment Letters and the related “flex provisions” of the fee letter relating to the Debt Commitment Letters (unless, in each case, the amount of the Equity Financing has been increased by a corresponding amount), (2) amend, modify or supplement the conditions or contingencies to, or impose new or additional conditions to, or expand any existing condition to, the Debt Financing, including in each case in a manner that would reasonably be expected to (v) maintain in effect make it less likely that the Equity Commitment LetterDebt Financing will be funded on the Closing Date, (w3) satisfy materially delay funding of the Debt Financing or make funding of the Debt Financing less likely to occur at the Closing, or (4) impose additional material obligations on the Company, any Company Subsidiary or their respective Affiliates prior to Closing), (iii) satisfying as promptly as practicable on a timely basis (or obtaining the waiver of) all conditions applicable to Buyer in such Equity Commitment Letter that are within its controlthe control of Parent or Merger Sub to the funding of the Debt Financing contemplated by the Debt Commitment Letters and the definitive agreements relating to the Debt Financing, (xiv) consummate accepting all “market flex” contemplated by the Equity Debt Commitment Letters and any fee letter relating to the Debt Commitment Letters to the extent necessary to obtain the funding of the Debt Financing at on the Closing Date, and (v) enforcing its rights under the Debt Commitment Letters in the event of a breach by the lenders under the Debt Commitment Letters or prior any related agreement or the definitive agreements relating to the Debt Financing that would reasonably be expected to, impede or materially delay the Closing. Parent shall, as promptly as practicable, provide to the Company copies of all executed documents (including all fee letters and engagement letters, subject to customary redaction of fee amounts, price caps and economic “flex” terms) relating to the Debt Financing and shall keep the Company reasonably informed of material developments in respect of the financing process relating thereto. At the Closing, (y) enforce upon request by the Company, Parent shall deliver to the Company any opinions, letters or certificates with respect to solvency matters obtained by or provided by Parent or its rights (including through litigation) under Affiliates to any Financing Sources in connection with the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the ClosingDebt Financing.
(c) Seller willWithout limiting the generality of the foregoing, and will cause Parent shall give the Company and prompt notice (i) of any breach or default (or any event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to the Company Subsidiaries toFinancing Commitments (including any related fee letter or engagement letter) of which Parent becomes aware, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to(ii) of the receipt or delivery of any written notice or other communication received by Parent, in each case from any Financing Source asserting or threatening any actual or potential breach, default, termination or repudiation by any party to the Financing Commitments (including any related fee letter or engagement letter) or any material dispute or disagreement between parties to any definitive document related to the Financing (including any Financing Commitment) with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Buyer’s sole cost the Closing or any other event or condition that could reasonably be expected to cause a condition to the Financing Commitments not to be satisfied or (iii) if at any time for any reason Parent believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and expenseconditions, in the manner or from the sources contemplated by any of the Financing Commitments. Parent shall promptly provide Buyer all cooperation any information reasonably requested by Buyer that is customary and necessary the Company relating to any circumstance referred to in connection with arranging and obtaining clauses (i), (ii) or (iii) of the Equity Financing and/or immediately preceding sentence.
(d) Prior to the Closing, without the prior written consent of the Company, Parent shall not agree to, or permit, any debt financing to be incurred by Buyeramendment, modification or supplement of, or waiver under, the Company and/or the Company Subsidiaries (including any asset-backed loan Debt Commitment Letters or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and other documentation relating to the Debt Financing (other than pursuant to “flex” provisions contained in the Debt Commitment Letters or any related fee letter) to the extent that such amendment, modification, supplement or waiver would reasonably be satisfied, which cooperation shall include but not be limited expected to, (i) instructing appropriate officers and employees reduce the amounts to be funded under the Debt Financing (including by increasing the amount of Seller, fees to be paid or original issue discount) from that contemplated in the Company applicable Debt Commitment Letter and the Company Subsidiaries related “flex provisions” of the fee letter relating to be available, on such Debt Commitment Letter (except to the extent of a reasonable basis and upon reasonable advance notice, corresponding increase to meet with prospective lenders and investors in customary presentations and due diligence sessionsthe Equity Financing), (ii) delivering amend, modify or supplement the unaudited consolidated balance sheets conditions or contingencies to, or impose new or additional conditions to, or expand any existing condition to, the Financing, in each case in a manner that would reasonably be expected to (A) make it less likely that the Financing will be funded at the Closing or (B) delay funding of the Company and Financing or make funding of the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rulesFinancing less likely to occur at the Closing, (iii) providing customary and reasonable assistance with respect adversely impact the ability of Parent or one of its Affiliates to Buyer’s preparation of appropriate presentations, information memos, offering memoranda enforce its rights against the other parties to the Debt Commitment Letters or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, impose additional material obligations on the Company, any Company Subsidiary, any Affiliate of Seller Subsidiary or their Representatives in connection with providing respective Affiliates prior to the assistance contemplated by this Section 6.7(c).
(d) For Closing; provided, however, that for the avoidance of doubt, whether the existing Debt Commitment Letters (and any fee letter or engagement letter) may be amended, amended and restated or replaced to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not the Equity Financing or executed the Debt Financing Commitment Letters (or any alternative financingfee letter or engagement letter) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver as of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicable.the
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Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability Parent will use reasonable best efforts to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Equity Financingproceeds of the Financing on the terms and conditions described in the Commitment Letters (including the exercise of so-called “market flex” provisions in the related fee letters) as promptly as practicable (taking into account the expected timing of the Closing), including using reasonable best efforts to (vi) maintain in effect the Equity Commitment LetterLetters, (wii) negotiate definitive financing agreements with respect to the Financing on terms and conditions (including the exercise of so-called “market flex” provisions in the related fee letters) that are not materially less favorable to Parent than the terms and conditions (including the exercise of so-called “market flex” provisions in the related fee letters) contemplated by the Commitment Letters and enter into, on or prior to the Closing Date, definitive financing agreements with respect to the Financing, (iii) satisfy on a timely basis (or obtain the waiver of) (taking into account the expected timing of the Closing) all conditions applicable to Buyer in such Equity Commitment Letter Parent at or prior to the Closing that are within its control (excluding any condition where the failure to be so satisfied is the result of the Company’s failure to furnish the information reasonably requested by Parent in accordance with the terms of this Agreement), and otherwise comply with the obligations applicable to Parent in the Commitment Letters and such definitive agreements within its control, (xiv) consummate the Equity Financing or any Replacement Financing at or prior to Closing, and (v) enforce its rights under the ClosingCommitment Letters. In the event that all conditions to funding the Financing set forth in the Commitment Letters have been satisfied or, upon funding will be satisfied, Parent will use its reasonable best efforts to cause the Financing Sources and the other Persons providing or committing to provide the Financing to comply with their obligations under the Commitment Letters and the definitive financing agreements entered into in connection with the Financing and to fund on or before the Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement (including taking enforcement action, including seeking specific performance (including through litigation if appropriate), to cause such Financing Sources and the other Persons providing or committing to provide the Financing to fund such Financing). Parent will keep the Company informed of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, including (A) promptly notifying the Company of (1) any material breach or material default by any party to the Commitment Letters or any definitive financing agreement entered into in connection with the Financing, if such breach or default would reasonably be expected to affect the timely availability of, or the amount of, the Financing and (2) the receipt by any of Parent or any of its Representatives of any written notice or other written communication from any Financing Source or any other Person with respect to any material dispute or disagreement between or among any parties to any Commitment Letter or any definitive financing agreement entered into in connection with the Financing, if such dispute or disagreement would reasonably be expected to affect the timely availability of, or amount of, the Financing and (B) upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to status. Without the prior written consent of the Company, Parent will not agree, permit or otherwise consent, to any amendment of, supplement, modification to, or waiver under, the Commitment Letters or the definitive agreements relating to the Financing if such amendment, supplement, modification or waiver (x) would reduce the aggregate cash amount of proceeds of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing (except as set forth in any so-called “market flex” provisions existing on the date of this Agreement in the related fee letters)) (it being understood that any reduction in the Bridge Facility in an amount corresponding to the proceeds from any Replacement Financing in accordance with terms of the Commitment Letters as in effect on the date hereof does not constitute a modification, amendment, supplement or waiver of the Commitment Letters), (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking would impose new or additional conditions or otherwise expand any specific performance of the parties thereunder and conditions to the receipt of the Financing from those set forth in the Commitment Letters on the date of this Agreement or (z) cause would otherwise reasonably be expected to (1) prevent or materially delay the Closing Date or (2) make the funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur (collectively, the “Restricted Commitment Letter Changes”), other than a waiver of any closing conditions by lender(s) or their agents; provided, however, Parent may amend the Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letters as of the date of this Agreement, if the addition of such additional parties, individually or in the aggregate, would not constitute a Restricted Commitment Letter Change. In addition, Parent will not permit or consent to any waiver of any remedy under the Commitment Letters or to any early termination of the Commitment Letters. For purposes of this Agreement, references to the “Commitment Letters” will include such document as permitted or required by this Section 6.10 to be amended, modified, supplemented or waived, in each case from and after the date of such amendment, supplement, modification or waiver.
(b) If, notwithstanding the use of reasonable best efforts by Parent to satisfy its obligations under this Section 6.10, any of the Financing or the Commitment Letters (or any definitive financing agreement relating thereto) expire or are terminated or otherwise become unavailable prior to the Closing, in whole or in part, for any reason, Parent will (i) promptly notify the Company of such expiration, termination or unavailability and (ii) use its reasonable best efforts promptly to arrange for alternative financing (which will be in an amount sufficient to pay, when added to the other resources of Parent and other financing arrangements, the Required Amount) from other sources on terms and conditions (including under so-called “market flex” provisions under the related fee letters) not materially less favorable, taken as a whole, to Parent than the terms and conditions of the Financing contained in the Commitment Letters (including under so-called “market flex” provisions under the related fee letters) to replace the Financing contemplated by such expired or terminated or unavailable commitments or agreements (“Alternative Financing”). True, complete and correct copies of each commitment letter and other agreement relating to the Alternative Financing (the “Alternative Commitment Letters”) will be promptly provided to the Company. If applicable, references in this Agreement to “Financing” will include “Alternative Financing,” any reference to “Commitment Letters” will include the “Alternative Commitment Letters” and any other Persons providing reference to definitive financing agreements related to fund the Equity Financing no later than will include the Closingdefinitive financing agreements related to the Alternative Financing.
(c) Seller will, Parent and will cause Merger Sub acknowledge and agree that the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access Financing is not a condition to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt FinancingClosing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or if the Financing has not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall Parent will continue to be obligated to consummate the transactions contemplated by this Agreement obligated, subject only to the satisfaction fulfillment or waiver of the conditions set forth in Section 8.1 ARTICLE VII, to complete the Merger and Section 8.2 and to Buyer’s termination rights under Article IX, if applicableconsummate the other transactions contemplated hereby.
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Financing Activities. Parent and Merger Sub have delivered to the Company a true and complete copy of the executed debt commitment letter and the related Fee Letter, dated as of the date hereof (a) Buyer acknowledges including all exhibits, schedules and agrees that Sellerannexes thereto and together with the related Fee Letter, the Company“Debt Commitment Letter”) from the Financing Sources; provided, the Company Subsidiarieshowever, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, solely in the case of the Company Fee Letter, a true and complete copy has been delivered to the Company Subsidiaries, for obligations incurred upon (but subject with redactions of only the fee amounts payable on the Closing Date to the occurrence a Financing Source and of the Closingamounts by which interest rates or original issue discount (“OID”) or immediately after giving effect to may change; provided further, that no redactions have been made of terms that could affect the Closing). Any offering materials and other documents prepared by or on behalf availability of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with conditionality applicable to the transactions contemplated hereby, which includes any information provided by Sellerfunding of, the CompanyDebt Financing or reduce the net proceeds thereof to an amount, when combined with other funds available to Parent and Merger Sub at Closing, less than the amount necessary to pay the Required Payment Amount. As of the date hereof, the Company Subsidiaries Debt Commitment Letter has not been amended or modified in any manner. None of Parent or Merger Sub or any of their respective AffiliatesAffiliates has entered into any Contract, side letter or other arrangement or understanding relating to the financing of the Required Payment Amount or transactions contemplated by this Agreement that could affect the amount of, availability of, or conditions precedent to, the funding of the Debt Financing on the Closing Date, other than as set forth in the Debt Commitment Letter. The commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect. The Debt Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Parent, Merger Sub and (to the Knowledge of Parent and Merger Sub) each other party thereto, including to negotiate the Debt Financing Documents in good faith with respect to the financing contemplated thereby, subject to the Remedies Exception. Parent has fully paid (or caused to be paid) any offering memorandumand all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. No event has occurred which, banker’s bookwith or without notice, lender presentation lapse of time or similar documentboth, would constitute a breach or default on the part of Parent, Merger Sub or any other written offering materials, used in connection with party thereto under the Debt Commitment Letter. None of Parent or Merger Sub has any debt reason to believe that it or securities offering or other such Buyer financing shall include a conspicuous disclaimer (to the effect that none Knowledge of Seller, the Company, the Company Subsidiaries or their respective Affiliates Parent and each of their respective Representatives, has Merger Sub) any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating party thereto will be unable to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including to (v) maintain in effect the Equity Commitment Letter, (w) satisfy on a timely basis all any term of the Debt Commitment Letter. There are no conditions applicable to Buyer in such Equity Commitment Letter that are within its control, (x) consummate the Equity Financing at precedent or prior other contingencies related to the Closingfunding of the full amount of the Debt Financing, other than the Financing Conditions. The only conditions precedent or other contingencies related to the funding of the Debt Financing on the Closing Date shall be the Financing Conditions contained in the Debt Commitment Letter. Parent and Merger Sub have no reason to believe, subject to satisfaction of the conditions precedent that set forth obligations of the Company, as set forth in Section 7.1 and Section 7.2, and assuming the accuracy of the Company’s representations and warranties set forth in this Agreement and the performance by the Company of its obligations hereunder, that (yi) enforce its rights any of the Financing Conditions will not be satisfied or (including through litigationii) under the Equity Debt Financing will not be made available to Parent and Merger Sub on the Closing Date. When funded in accordance with, and subject to, the terms and conditions of the Debt Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller will“market flex” provisions with respect thereto, and will cause the Company together with other funds available to Parent and the Company Subsidiaries toMerger Sub at Closing, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing will provide Parent and Merger Sub with acquisition financing on the Closing Date sufficient to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, pay the Company and Required Payment Amount on the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance terms contemplated by this Section 6.7(c).
Agreement. Notwithstanding anything to the contrary contained herein, each party hereto agrees that a breach of this representation and warranty shall not result in the failure of a condition precedent to Company’s and Shareholder Representative’s obligations under this Agreement, if (dnotwithstanding such breach) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated Parent and Merger Sub are willing and able to consummate the transactions contemplated by this Agreement subject only to Merger on the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicableClosing Date.
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Financing Activities. (a) Buyer acknowledges shall take, or use its commercially reasonable efforts to cause to be taken, all actions and agrees to do, or use its commercially reasonable efforts to cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Debt Financing and the Debt Commitment Letter, (ii) enter into definitive financing agreements with respect to the Debt Financing, in accordance with the terms set forth in the Debt Commitment Letter (taking into account any “market flex” provisions), so that Seller, such agreements are in effect as promptly as practicable but in any event no later than the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility forClosing Date, and shall not incur any liability (iii) satisfy on a timely basis all conditions applicable to any Person under, any Buyer and under the control of Buyer in such definitive financing that Buyer may raise agreements and consummate the Debt Financing at or prior to the Closing in connection accordance with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case terms of the Company and Debt Commitment Letter; provided, that nothing herein shall require the Company SubsidiariesBuyer, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries Parent or any of their respective AffiliatesAffiliates to commence, including join, maintain or support any offering memorandumProceeding against the Debt Financing Sources. Following the reasonable request therefor, banker’s bookBuyer shall promptly provide to Seller copies of material definitive documentation in respect of the Debt Financing and shall keep Seller informed on a reasonably current basis of its efforts to arrange and consummate the Debt Financing; provided, lender presentation or similar document, that the Buyer shall promptly notify Seller if (a) the Debt Commitment Letter or any other written offering materialsdefinitive financing agreement entered into in replacement of all or a portion of the Debt Financing contemplated by the Debt Commitment Letter, used in connection with any debt as applicable, shall expire or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Sellerbe terminated, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) for any reason, all or a portion of the Debt Financing under the Debt Commitment Letter becomes unavailable, (c) the Buyer receives notice or have Knowledge that any lender, financial institution, agent, arranger or institutional investor under the Debt Commitment Letter breaches, defaults or repudiates the Debt Commitment Letter, (d) Buyer receives of any written notice or other written communication from any of the Debt Financing Sources with respect to any termination or repudiation by any party to the Debt Commitment Letter and (e) any material dispute or disagreement between or among any parties to the Debt Commitment Letter or any definitive documents related to the Debt Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or any definitive agreement with respect thereto that could not reasonably be expected to result in a failure to obtain the Debt Financing or a delay in the Closing); provided, that in no event will Buyer be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Buyer shall have used its commercially reasonable efforts to disclose such information in a way that would not waive such privilege. Prior to the Closing, Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, either of the Equity Debt Commitment Letter or other documentation relating to the Equity Debt Financing other than to increase that (1) would reduce the aggregate amount of the Debt Financing, including by changing the amount of the Equity Financing. In addition, Buyer shall take or to cause fees to be taken, all actions and do, paid or cause to be done, all things necessary, proper or advisable to obtain original issue discount (other than any “market flex” provisions) from that contemplated in the Equity Financing, including to (v) maintain in effect the Equity Debt Commitment Letter, (w2) satisfy on a timely basis all would impose new or additional conditions, or otherwise expand, amend or modify any of the conditions applicable to Buyer in such Equity Commitment Letter that are within its control, (x) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance receipt of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller will, and will cause the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, as set forth in the Company and the Company Subsidiaries to be available, on Debt Commitment Letter in a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access manner adverse to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate interests of Seller or their Representatives the Company hereunder or in connection with providing a manner that would reasonably be expected to prevent, impair or delay the assistance availability of the Debt Financing at Closing or (3) could reasonably be expected to prevent, impair or delay the availability of the Debt Financing at Closing or adversely affect Buyer’s ability to consummate the transactions contemplated by in this Section 6.7(c).
(d) For Agreement. Further, for the avoidance of doubt, whether or not the Equity Financing or if the Debt Financing (or any alternative financingAlternative Financing) has not been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of the conditions set forth in Section 8.1 9.1 and Section 8.2 9.2 and to Buyer’s termination rights under Article IXXI, if applicable.
(b) If any of the Debt Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter or the Debt Commitment Letter (or any definitive financing agreement relating thereto) expires or is terminated (other than in accordance with their terms) prior to the Closing, for any reason, Buyer shall (i) promptly notify Seller of such unavailability, expiration or termination and the reasons therefor and (ii) use its commercially reasonable efforts promptly to arrange for alternative financing (the “Alternative Financing”) to replace the debt financing contemplated by such expired or terminated commitments or arrangements; provided, that in no event will the commercially reasonable efforts of the Buyer be deemed or construed to require the Buyer to (A) pay fees materially in excess of those contained in the Debt Commitment Letter (including the “market flex” provisions) or agree to “market flex” terms materially less favorable to the Buyer than the corresponding market flex terms contained in or contemplated by the Debt Commitment Letter or (B) enter into any Alternative Financing terms that are materially less favorable to Buyer than the terms contained in the Debt Commitment Letter on the date hereof (taken as a whole). The Alternative Financing (a) shall be sufficient to pay, when added with other cash on hand and available resources of Parent and Buyer, the Required Amount and (b) shall not impose new or additional conditions, or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing as set forth in the Debt Commitment Letter in a manner adverse to the interests of Seller or the Company hereunder or in a manner that would reasonably be expected to prevent, impair or delay the availability of the Debt Financing at Closing. If applicable, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing” and any reference to “Debt Commitment Letter” shall include the new financing commitment that provides for the relevant Alternative Financing.
(c) The Company shall use its commercially reasonable efforts to provide, and shall cause its Subsidiaries to provide and use commercially reasonable efforts to cause its and their respective officers, employees, and Representatives to use their commercially reasonable efforts to provide, at Buyer’s sole cost and expense, to Parent and Buyer all cooperation reasonably requested by Parent and Buyer and/or the Debt Financing Sources that is necessary, proper or advisable in connection with the Debt Financing or the High-Yield Financing to the extent customary in connection with the arrangement of financing similar to the Debt Financing, including:
(i) the senior management team of the Company participating in a reasonable number of meetings and presentations on reasonable advance notice and at reasonable locations, and reasonably cooperating with the marketing efforts of Parent, Buyer and the Debt Financing Sources, including participation in a reasonable number of road shows and meetings with prospective lenders, investors and ratings agencies, in each case in connection with the Debt Financing;
(ii) assisting with the preparation of customary materials for rating agency presentations, offering documents, bank information memoranda, business projections, lender and investor presentations and similar documents required in connection with the Debt Financing including information relating to the business, financial condition, results of operations, legal affairs and regulatory regime applicable to the Company, as well as information relating to risks associated with operation of its business;
(iii) furnishing Parent, Buyer (including for filing with the Securities and Exchange Commission, if and to the extent required, and to be included in any offering memorandum related to the Financing) and the Debt Financing Sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or Buyer to the extent customarily included in a bank information memorandum, private placement memorandum (including any offering memorandum) or lender presentations in connection with the arrangement of financing similar to the Debt Financing, including (A) the Financial Statements (which Buyer acknowledges have been made available prior to the date hereof) and, (B) unaudited consolidated balance sheets and related income statement and statements of cash flows of the Company for each subsequent interim quarterly period (other than the final quarter of any fiscal year) ended at least forty-five (45) days prior to the Closing Date (and the corresponding period for the prior fiscal year), (provided, that in no circumstance shall the Company be required to provide subsidiary financial statements or any other information of the type required by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, executive compensation disclosure required by Regulation S-K Item 402(b) or other information customarily excluded from a Rule 144A offering memorandum);
(a) using commercially reasonable efforts to cause Xxxxx Xxxxxxxx LLP to deliver accountants’ comfort letters with respect to the Audited Financial Statements and consents to the use of accountants’ audit reports relating to the Company and its Subsidiaries, in each case as is customary for an offering of high yield debt securities under Rule 144A and (b) if Xxxxx Xxxxxxxx LLP shall have withdrawn its audit opinion with respect to any of the Audited Financial Statements, furnishing Buyer, Parent and the Debt Financing Sources with new unqualified audit opinions with respect to such financial statements by Xxxxx Xxxxxxxx LLP or another nationally recognized independent public accounting firm;
(v) reasonably facilitating the pledge of collateral, reasonably cooperating with Buyer’s legal counsel in preparation of financing agreement disclosure schedules and perfection certificates, reasonably cooperating with Buyer’s diligence requests in connection with preparation of legal opinions, in each case in connection with the Debt Financing;
(vi) providing customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders and investors (subject to reasonable confidentiality provisions) and, with respect to any public-side version of such information, confirming that such version does not contain information that is not material with respect to the Company or its securities for purposes of United States federal and state securities laws;
(vii) to the extent requested in writing at least three (3) Business Days prior to the Closing Date, furnishing to Parent and Buyer, for distribution to the Debt Financing Sources, information reasonably required by any Debt Financing Source for compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001 and the “Beneficial Ownership Regulation”;
(viii) cooperating reasonably with the due diligence of the Debt Financing Sources or any underwriters of any other financing of Parent or Buyer in connection with the Debt Financing, to the extent customary and reasonable and to the extent not unreasonably interfering with the ongoing operations of the Company, including providing customary and reasonable information relating to (and participating in) due diligence sessions covering, the business, financial condition, results of operations, legal affairs and regulatory regime applicable to the Company, as well as information relating to risks associated with operation of its business;
(ix) if (A) (1) any of the financial statements in the Audited Financial Statements shall have been restated or (2) the Company, any governing body of the Company or Xxxxx Xxxxxxxx LLP shall have determined that a restatement of any such financial statements is required and (B) the Company or Xxxxx Xxxxxxxx LLP, as applicable, has not subsequently determined and confirmed in writing to Buyer that no restatement shall be required in accordance with GAAP, furnishing Buyer and the Debt Financing Sources with such restated financial statements; and provided, however, that (a) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the ongoing operations of the Seller, and the Company and its Subsidiaries and (b) neither the Seller, the Company nor any Subsidiary of the Company shall be required to (i) pay any commitment or other similar fee or incur any other cost or expense that is not promptly reimbursed by Parent or Buyer in connection with the Debt Financing or the High-Yield Financing or (ii) grant any security interest or adopt any resolutions approving or otherwise approve the agreements, documents or instruments pursuant to which the Debt Financing or the High-Yield Financing is made, before the consummation of the Closing. The Parent or Buyer shall, promptly upon request by the Seller or the Company, reimburse the Seller and/or the Company for all reasonable and documented out of pocket costs incurred by the Seller, the Company or any of its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Seller, the Company, its Subsidiaries and their respective Representatives for and against any and all Losses suffered or incurred by them in connection with the arrangement of the Debt Financing or the High-Yield Financing and any information utilized in connection therewith (including information provided by the Seller, the Company or any of its Subsidiaries).
(d) Notwithstanding anything to the contrary, the condition set forth in Section 9.2(b) of this Agreement, as it applies to the obligations of the Company and Seller under this Section 6.5 and Section 6.2, shall be deemed satisfied unless (x) the Buyer has not obtained the Debt Financing or alternative financing on the terms set forth in the Debt Commitment Letter and (y) the Company’s material and willful breach of its obligations under this Section 6.5 and Section 6.2 (after notice and opportunity to cure) was the proximate cause of the failure of the Buyer to obtain the Debt Financing on the terms set forth in the Debt Commitment Letter.
(e) Buyer’s obligation to consummate the transactions contemplated by this Agreement is not contingent on Buyer’s ability to obtain any financing, whether pursuant to the Debt Commitment Letter or otherwise.
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Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability use its commercially reasonable efforts to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including to (vi) maintain in effect the Equity Debt Financing and the Debt Commitment LetterLetters, (wii) arrange and obtain the proceeds of the Debt Financing on terms and conditions described in the Debt Commitment Letters, (iii) enter into definitive financing agreements with respect to the Debt Financing, so that such agreements are in effect on the Closing Date, (iv) satisfy on a timely basis all conditions applicable and covenants in the Debt Commitment Letters to Buyer in such Equity Commitment Letter that are within its controlbe satisfied by Buyer, and (xv) consummate the Equity Debt Financing at or the Closing. Buyer shall (upon request) keep Seller reasonably informed of material developments in respect of the Debt Financing process relating to this transaction. Without Seller’s prior written approval, prior to the ClosingClosing Buyer shall not amend, supplement or modify, or agree to amend, supplement or modify, the Debt Commitment Letters, in any manner that would reasonably be expected to materially impair, delay or prevent the funding of the Debt Financing or the occurrence of the transactions contemplated under this Agreement.
(b) In the event that any portion of the Debt Financing becomes unavailable in the manner or from the sources contemplated in the Debt Commitment Letters (or any definitive financing agreement relating thereto), (yi) enforce Buyer shall promptly notify Seller and (ii) Buyer shall use its rights commercially reasonable efforts until the Termination Date to arrange to obtain any such portion from alternative sources (including through litigationon terms, which in the aggregate, are not less favorable to Buyer) under (the Equity Commitment Letter“Alternative Financing” and, together with the Debt Financing, the “Financings”), as promptly as practicable following the occurrence of such event, including seeking any specific performance by entering into definitive agreements with respect thereto. Buyer shall keep Seller reasonably informed on a current basis in reasonable detail of the parties thereunder and (z) cause status of Buyer’s efforts to arrange or obtain the financing sources and any other Persons providing financing to fund proceeds of the Equity Financing no later than the ClosingDebt Financing.
(c) Prior to the Closing, Seller willshall, and will shall cause the Company its Subsidiaries and the Company Subsidiaries Affiliates to, and will shall use its commercially reasonable efforts to cause its Affiliates Affiliates’ and its Subsidiaries’ respective directors, officers, employees, representatives and their respective Representatives advisors (including legal, financial and accounting advisors) to, in each case at Buyer’s sole cost and expense, provide to Buyer all such cooperation with the Financings as may be reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include (provided, that such requested cooperation does not (x) interfere with the ongoing operations of Seller and its Affiliates, (y) cause any representation, warranty or covenant in this Agreement to be inaccurate or breached or (z) cause any Closing condition set forth in Article 10 to fail to be satisfied), but not be limited to, :
(i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on participation in a reasonable basis and upon reasonable advance noticenumber of meetings, to meet with prospective lenders and investors in customary presentations and presentations, due diligence sessions, ;
(ii) delivering as promptly as reasonably practicable, furnishing Buyer and its Financings sources with financial and other information regarding the unaudited consolidated balance sheets Business; provided, that, none of the Company and the Company Seller or any of its respective Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect or Affiliates shall be required to Buyer’s preparation of appropriate presentations, information memos, offering memoranda pay any commitment or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation similar fee or incur any other liability in connection with the Equity Financing and Financings prior to the Debt FinancingClosing. Buyer acknowledges and agrees that neither Seller nor any of its respective Affiliates or any of their respective directors, officers, employees, representatives and advisors (including legal, financial and accounting advisors) shall promptly have any responsibility for, or incur any liability to any Person under or in connection with, the arrangement of the Financings that Buyer may raise in connection with the transactions contemplated by this Agreement.
(d) Buyer shall promptly, upon request by Seller and from time to time pay to or Seller’s request, reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives any of its Affiliates in connection with providing the assistance cooperation of Seller contemplated by this Section 6.7(c).
(d9.11(c) For and shall indemnify and hold harmless Seller, its Affiliates and their respective directors, officers, employees and representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the avoidance arrangement of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of the conditions set forth Alternate Financing and any information used in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicableconnection therewith.
Appears in 1 contract
Financing Activities. (a) Buyer acknowledges and agrees that Seller, 5.12.1. Subject to the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility forother provisions of this Agreement, and shall not incur any liability to any Person under, any financing that Buyer may raise in connection with taking into account the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case anticipated timing of the Company and the Company SubsidiariesMarketing Period, for obligations incurred upon (but subject Holdco I will use reasonable best efforts to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary to (a) arrange and consummate the Financing as promptly as reasonably practicable on the terms and conditions described in the Commitment Letters (including, as necessary, proper any “flex” terms contained in the Debt Commitment Letter or advisable to obtain the Equity Financingany related fee letter), including to (vb) maintain in effect the Equity commitment for the Financing set forth in the Commitment LetterLetters, (w) satisfy on a timely basis all conditions applicable subject to Buyer in such Equity Commitment Letter that are within its controlamendments, (x) consummate the Equity Financing at or prior to the Closingmodifications and replacements permitted hereunder, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller willnegotiate, execute and will cause deliver definitive agreements with respect to the Company Debt Financing on the terms and conditions contemplated by the Company Subsidiaries toDebt Commitment Letter (including, as necessary, any “flex” terms contained in the Commitment Letters or any related fee letter) and will use its commercially reasonable efforts on other terms and conditions that are not less favorable to cause its Affiliates Holdco I (as determined by Holdco I in good faith) than the terms contemplated by the Debt Commitment Letter in effect on the date hereof and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining would not (i) reduce the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and aggregate amount of the Debt Financing to be satisfiedfunded on the Closing Date unless the Equity Financing is increased by a corresponding amount or (ii) impose new or additional conditions precedent, or otherwise amend, modify or expand any conditions precedent, to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) cause all or any portion of the Debt Financing to be unavailable on a date on which cooperation shall include but not be limited tothe Closing is otherwise required to occur pursuant to Section 2.2, (B) prevent the funding of the Debt Financing at the Closing or (C) adversely affect the ability of Holdco I to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (the items described in the preceding clauses (i) instructing appropriate officers and employees (ii), collectively, the “Restricted Financing Commitment Amendments”) (provided that (x) the existence or exercise of Sellerany “flex” terms will not constitute a Restricted Financing Commitment Amendment and (y) Holdco I may amend or modify, or waive any provision or remedy under, the Debt Commitment Letter if such amendment, modification or waiver is not a Restricted Financing Commitment Amendment, it being understood and agreed that any amendment or modification to add lenders, lead arrangers, bookrunners, syndication agents and similar entities will not be a Restricted Financing Commitment Amendment), (d) satisfy and cause to be satisfied, on a timely basis, all conditions applicable to, and within the control of, Holdco I in the Commitment Letters, and (e) enforce its rights under the Debt Commitment Letter or, in the event that the Debt Financing is unavailable, solely at Holdco I’s option, arrange for the Strategic Investor or one of its Affiliates to provide the Debt Financing (provided that such alternative Debt Financing by the Strategic Investor or one of its Affiliates will be completed (i) on the same terms as the terms set forth in the Debt Commitment Letter (without giving effect to any “flex” provisions) and (ii) within five (5) Business Days of receipt by the Buyer Parties of the written notice contemplated by Section 8.1.6(c)), if and to the extent necessary to obtain the Debt Financing contemplated thereby. Promptly after receipt thereof, Holdco I will provide the Sellers’ Representative with copies of any amendment or modification of the Commitment Letters.
5.12.2. In the event that all conditions to the Debt Financing have been satisfied (other than the availability of the Equity Financing), Holdco I will use reasonable best efforts to cause the Debt Financing Sources to fund, on or prior to the date on which the Closing is required to occur pursuant to Section 2.2, the Debt Financing required to consummate the Closing.
5.12.3. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable “flex” terms contained in Debt Commitment Letter or any related fee letter) contemplated in the Debt Commitment Letter, Holdco I will use reasonable best efforts to arrange and obtain in replacement thereof, and to negotiate and enter into definitive agreements with respect to, alternative debt financing from alternative debt financing sources, in an amount sufficient to pay all obligations of Holdco I hereunder that are required to be paid on the Closing Date and on terms and conditions (including any “flex” provisions applicable thereto) that are not less favorable (in the aggregate) to Holdco I (as determined by Holdco I in good faith) than the terms contemplated by the Debt Commitment Letter in effect on the date hereof, as promptly as practicable following the occurrence of such event, but in no event later than the date the Buyer Parties are required to consummate the Closing pursuant to Section 2.2. Holdco I will promptly provide the Sellers’ Representative with a copy of any such new financing commitment letters with respect to any alternative debt financing. For purposes of this Agreement, after the date hereof, (a) references to the “Debt Financing” will include the financing contemplated by the Debt Commitment Letter as permitted to be amended, modified or replaced by Section 5.12.1 or this Section 5.12.3, and (b) references to the “Debt Commitment Letter” will include such documents as permitted to be amended, modified or replaced by Section 5.12.1 or this Section 5.12.3.
5.12.4. Holdco I will not permit any amendment, modification or waiver, in each case, constituting a Restricted Financing Commitment Amendment to be made to the Debt Commitment Letter without obtaining the prior written consent of the Sellers’ Representative.
5.12.5. Upon the request of the Sellers’ Representative, Holdco I will keep the Sellers’ Representative reasonably informed with respect to material activity concerning the status of the Debt Financing. Without limiting the foregoing, Holdco I will notify the Sellers’ Representative promptly if at any time prior to the Closing Date: (a) the Commitment Letters expire or are validly terminated or repudiated for any reason; (b) Holdco I obtains knowledge of any material breach or material default, or any threatened (in writing) material breach or material default, by any party to the Commitment Letters or any definitive document related to the Financing of any provisions of the Commitment Letters or any definitive document related to the Financing; or (c) Holdco I no longer believes in good faith that it will be able to obtain all or any portion of the Financing on substantially the terms and conditions contemplated by the Commitment Letters.
5.12.6. Nothing in this Section 5.12 or any other provision of this Agreement will require, and in no event will the “reasonable best efforts” of Holdco I be deemed or construed to require, Holdco I to (a) seek or accept Debt Financing on terms materially less favorable in the aggregate to Holdco I than those set forth in the Debt Commitment Letter (including, if necessary, any related “flex” terms set forth in the Debt Commitment Letter or any related fee letter) provided on the date of this Agreement, or (b) waive any term or condition of this Agreement. In the event Holdco I is required pursuant to this Section 5.12 to provide any information that is subject to any legal privilege, Holdco I may withhold disclosure of such information.
5.12.7. While the parties hereto acknowledge and agree that obtaining the Debt Financing is not a condition to the Buyer Parties’ obligations hereunder, from the date hereof until the Closing (or the earlier termination of this Agreement pursuant to Article 8), subject to the limitations set forth below, the Company will, and the Company Subsidiaries will cause the Group Companies to, and will instruct their Representatives to, cooperate with Holdco I as reasonably requested by Holdco I in connection with Holdco I’s arrangement of the Debt Financing; provided, that nothing herein will require such cooperation to be the extent that it would unreasonably interfere with the business or operations of the Group Companies. Such cooperation will include: (a) making appropriate Representatives of the Group Companies reasonably available, on a reasonable basis and upon reasonable with appropriate advance notice, to meet for participation in rating agency meetings and bank meetings and other meetings with the Debt Financing Sources and any actual or prospective lenders and investors in customary connection with the Debt Financing; (b) providing reasonable assistance in the preparation of confidential information memoranda, materials for rating agency presentations and due diligence sessionslender presentations, business projections or other marketing documents necessary for, or customarily used to arrange, transactions similar to the Debt Financing, and identifying any portion of the information included in the foregoing that constitutes material, non-public information; (c) providing a customary authorization letter with respect to confidential information memoranda and consents of accountants for use of their reports in any materials relating to the Debt Financing; (d) facilitating (i) the granting of a security interest (and perfection thereof) in collateral and (ii) delivering the unaudited consolidated balance sheets preparation, execution and delivery of any definitive financing documents and certificates, as may be reasonably requested by Holdco I or the Debt Financing Sources, including obtaining releases of existing encumbrances; provided, that any obligations and releases of encumbrances contained in all such documents and certificates will be subject to the occurrence of the Company Closing; (e) furnishing all documentation and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary other information in connection with required by any Governmental Authority under applicable “know your customer” and anti-money laundering rulesrules and regulations requested in writing at least eight (8) Business Days prior to the Closing at least four (4) Business Days prior to the Closing, but in each case, solely as relating to the Group Companies; (iiif) providing customary and reasonable assistance cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies; (g) obtaining a certificate of the chief financial officer or person performing similar functions of the Company in the form attached to the Debt Commitment Letter with respect to Buyer’s preparation solvency matters; and (h) obtaining copies of appropriate presentationssuch other pertinent financial and operating data, information memosand other customary information, offering memoranda with respect to the Group Companies as is reasonably requested by Holdco I or other marketing the Debt Financing Sources and disclosure documents and customary information in connection therewithis customarily required for completion of debt financings similar to the Debt Financing, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access Required Bank Information. The Company hereby consents to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery use of definitive documentation logos used by the Group Companies in connection with the Equity Financing Debt Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Group Companies or the reputation or goodwill of the Group Companies. Nothing in this Section 5.12 will require (A) any Representative of the Group Companies to deliver any certificate, other than any authorization letters delivered pursuant to clause (c) above (unless such Representative is only required to sign in his or her capacity as a Representative and not in any individual capacity) or opinion or take any other action that could reasonably be expected to result in personal liability to such Representative or (B) Persons who are directors (or equivalent) of the Group Companies prior to the Closing (in their capacity as such) to pass resolutions or consents to approve or authorize the Debt FinancingFinancing (other than any Person who is continuing as a director (or equivalent) of the Group Companies following the Closing, who will not be required to execute, deliver or enter into or perform any agreement, document or instrument, or adopt any resolutions approving the agreements, documents and instruments, pursuant to which the Debt Financing is obtained that is not contingent upon the Closing or that would be effective prior to the Closing).
5.12.8. Buyer shall promptly Notwithstanding Section 5.12.7 or anything else in this Agreement, whether or not the Closing occurs:
(a) except to the extent subject to reimbursement by Holdco I pursuant to Section 5.12.8(b), in no event will the Company or Sellers’ Representative be required to bear any cost or expense, pay any fee or incur any liability in connection with the Financing prior to the Closing; and
(b) Holdco I will promptly, upon request by Seller the Company or Sellers’ Representative, reimburse the Company and from time to time pay to or reimburse Seller Sellers’ Representative for all reasonable and documented out-of-pocket fees, costs and expenses (including reasonable and documented out-of-pocket fees, costs and expenses of counsel) incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or Group Companies and their respective Affiliates and Representatives in connection with providing their cooperation in arranging the assistance contemplated Debt Financing, and except to the extent arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Group Companies or their respective Affiliates or Representatives, Holdco I will indemnify and hold harmless the Group Companies and their respective Affiliates and Representatives from and against all losses, damages, claims, or out-of-pocket costs or expenses incurred by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not the Equity Financing or Company in connection with their cooperation in arranging the Debt Financing and any information (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only other than historical information relating to the satisfaction Group Companies or waiver other information furnished in writing by or on behalf of the conditions set forth Group Companies) used in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicableconnection therewith.
Appears in 1 contract
Samples: Merger Agreement (Fresenius Medical Care AG & Co. KGaA)
Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and Purchaser shall not incur any liability use its reasonable best efforts to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Equity FinancingDebt Financing as promptly as practicable and to consummate the Debt Financing at the Closing, on the terms and conditions described in the Debt Commitment Documents (including the market flex provisions of the Debt Fee Letters) (subject to Purchaser’s right to amend, modify, supplement, restate or replace the Debt Commitment Documents to the extent not prohibited hereby), including using its reasonable best efforts to (vi) maintain in effect the Equity Debt Commitment Letter, (wii) satisfy on a timely basis all conditions precedent to the funding of the Debt Financing at Closing that are applicable to Buyer Purchaser and reasonably within Purchaser’s control (other than any conditions waived by the applicable counterparties and other than any condition where the failure to be so satisfied is a result of the Company’s or a Seller’s failure to furnish information or provide the cooperation in such Equity breach of its obligations under this Section 6.14) and comply in all material respects with its obligations in the Debt Commitment Letter that are within its control(including cooperating with any flex provisions requested by the Debt Financing Sources), (xiii) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller will, and will cause the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection enter into definitive agreements with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing respect thereto (the “Definitive Financing Documentation”) that reflect the terms contained in the Debt Commitment Documents (including the market flex provisions) or on such other terms acceptable to Purchaser and its financing sources, provided that such other terms would not (A) reduce the aggregate amount of the Debt Financing”, together with cash otherwise available to Purchaser, to an amount below that necessary to satisfy Purchaser’s obligation to consummate the Transactions (as contemplated by Section 4.05), (B) adversely impact or substantially delay the ability of Purchaser to timely consummate the Transactions (as contemplated by Section 4.05 and causing taking into account the Marketing Period) or (C) make the funding of the Debt Financing (or satisfaction of the conditions in agreements governing to obtaining the Equity Financing and Debt Financing) less likely to occur, including imposing new or additional conditions to the funding at Closing or otherwise expanding or adversely amending or modifying any of the conditions to the receipt of the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers funded at Closing and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of any conditions set forth in the Debt Commitment Letter, and upon the satisfaction of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicable.in
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (On Assignment Inc)
Financing Activities. 46-
(a) Buyer acknowledges Subject to the other terms and agrees that Sellerconditions of this Agreement, during the Company, period from the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability to any Person under, any financing that Buyer may raise in connection with date hereof through the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case earlier of the Company and Closing or the Company Subsidiariestermination of this Agreement in accordance with its terms, for obligations incurred upon (but subject Parent shall use its reasonable best efforts to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Equity Financingproceeds of the Financing on the terms and conditions described in the Financing Commitment Letters, including to using reasonable best efforts to: (vi) maintain in effect the Equity Financing Commitment LetterLetters except as otherwise provided pursuant to clauses (c) and (d) of this Section 6.12 until the transactions contemplated by this Agreement are consummated, (wii) satisfy satisfy, or cause to be satisfied, on a timely basis (or obtain the waiver of) all conditions applicable to Buyer Parent in such Equity the Financing Commitment Letter that are within its controlLetters, (xiii) negotiate and enter into definitive agreements with respect to the Financing (the “Financing Agreements”) on the terms and conditions contemplated by the Financing Commitment Letters, (iv) pay all commitment fees or other fees required by the Financing Commitment Letters to be paid as they become due, and (v) consummate the Equity Financing at or prior to the Closing, time the Closing is required to occur pursuant to Section 1.2. (yb) enforce its rights (including During the period from the date of this Agreement through litigation) under the Equity Commitment Letter, including seeking any specific performance earlier of the parties thereunder Closing or the termination of this Agreement in accordance with this terms, Parent shall use reasonable best efforts to provide the Company with reasonably prompt written notice, and in any event within two (z2) cause Business Days of becoming aware, of any of the financing sources and any other Persons providing financing following, to fund the Equity Financing no later than extent occurring prior to the Closing.
: (ci) Seller will, and will cause any material breach or default by any party to the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts Financing Commitment Letters or any Financing Agreement of which Parent becomes aware that would reasonably be expected to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around materially delay the Closing (the “Debt Financing”), and causing the if all conditions to Closing set forth herein were otherwise satisfied in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection accordance with the Equity Financing and terms hereof) or prevent the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate ability of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated Parent to consummate on the Closing Date the transactions contemplated by this Agreement on the terms and subject only to the satisfaction or waiver of the conditions set forth herein; (ii) the receipt by Parent of any written notice or other written communication from any Person with respect to any (x) breach, default, termination or repudiation by any party to a Financing Commitment Letter or (y) dispute or disagreement between or among any parties to any Financing Commitment Letter (other than any customary negotiations with respect to the terms of the Financing), which, in Section 8.1 each case, would reasonably be expected to delay the Closing (if all conditions to Closing set forth herein were otherwise satisfied in accordance with the terms hereof) or prevent the ability of Parent to consummate on the Closing Date (if all conditions to Closing set forth herein were otherwise satisfied in accordance with the terms hereof) the transactions contemplated by this Agreement on the terms and Section 8.2 subject to the conditions set forth herein; and to Buyer’s (iii) of any expiration or termination rights under Article IX, if applicableof any Financing Commitment Letter.
Appears in 1 contract
Samples: Merger Agreement (Diversified Restaurant Holdings, Inc.)
Financing Activities. (a) Each of Buyer and Merger Sub acknowledges and agrees that Sellerthat, other than the obligations listed under Section 6.9(d), the CompanyStockholders’ Representatives, the Company Subsidiaries, and their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability to any Person under, for any financing that Buyer or Merger Sub may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility thereforTransactions.
(b) Each of Buyer and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing, the Commitment Letters and the Rollover Letter, (ii) negotiate and enter into definitive financing agreements with respect to the Financing and the Rollover Investment that are on terms and conditions (including the flex provisions contained in the associated fee letter) that are no less favorable to Buyer and Merger Sub in any material respect than those contained in the Financing Commitments and the Rollover Letter, so that such agreements are in effect no later than the Closing Date, (iii) satisfy, or obtain the waiver of, on a timely basis all conditions applicable to Buyer and Merger Sub contained in the Financing Commitments and the Rollover Letter within their control, including the payment of any commitment, engagement or placement fees required as a condition to the Financing, (v) consummate the Financing and the Rollover Investment at or prior to the date that the Closing is required to be effected in accordance with Section 2.2 (Buyer and Merger Sub acknowledge and agree that it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Buyer and Merger Sub to obtain the Financing, any alternative financing or the contribution contemplated by the Rollover Letter), (vi) enforce its rights under the Debt Commitment Letter; provided, that all of the conditions to Buyer’s obligations under Sections 7.1(b) and 7.2 (other than those conditions that by their terms are to be satisfied at the Closing Date) have been satisfied or waived and the Marketing Period has ended, and (vii) comply with its obligations under each of the Commitment Letters, the associated fee letter and the Rollover Letter. Buyer shall provide to the Company copies of material, substantially final and definitive documents relating to the Financing (which in the case of any fee letter, shall be redacted for fee amounts, market flex provisions and other customary threshold amounts, and in any case shall not include any fee credit and engagement letters in respect of the Financing) and shall keep the Company reasonably informed on a current basis and in reasonable detail of material developments in respect of the financing process relating thereto. Without limiting the generality of the foregoing, Buyer and Merger Sub shall provide the Company prompt notice (x) of any material breach or default by any party to any of the Commitment Letters or the Rollover Letter or definitive agreements related to the Financing of which Buyer and Merger Sub become aware, (y) of the receipt of (A) any written notice or (B) other communication, in each case from any Financing source or Rollover Investor with respect to any (i) actual or threatened breach, default, termination or repudiation by any party to any of the Commitment Letters, the Rollover Letter or definitive agreements related to the Financing of any provision of any of the Commitment Letters, the Rollover Letter or definitive agreements related to the Financing and (ii) material dispute or disagreement between or among any parties to any of the Commitment Letters, the Rollover Letter or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing, or the obligation of the Rollover Investors to contribute the full amount of the Rollover Investment and (z) if at any time for any reason Buyer or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions contemplated by the Financing Commitments or definitive agreements related to the Financing, or that it will not be able to obtain all or any portion of the Rollover Investment. As soon as reasonably practicable, Buyer and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence. Prior to the Closing, Buyer shall not, without the prior written consent of the Company, agree to, or permit, any amendment or modification of, or waiver under, any of the Equity Commitment Letter Letters or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including to (v) maintain in effect the Equity Commitment Rollover Letter, which would (w1) satisfy on a timely basis all conditions applicable reasonably be expected to adversely affect Buyer in such Equity Commitment Letter that are within its control, (x) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause the financing sources and any other Persons providing financing to fund the Equity Financing no later than the Closing.
(c) Seller will, and will cause the Company and the Company Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, in each case at BuyerMerger Sub’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery of definitive documentation in connection with the Equity Financing and the Debt Financing. Buyer shall promptly upon request by Seller and from time to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c).
(d) For the avoidance of doubt, whether or not the Equity Financing or the Debt Financing (or any alternative financing) has been obtained, Buyer shall continue to be obligated ability to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IXTransactions, if applicable.(2) reduce the
Appears in 1 contract
Samples: Merger Agreement (Am-Source, LLC)
Financing Activities. (a) Each Buyer’s Parent and Buyer acknowledges shall use (and agrees shall cause their Affiliates to use) their best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing and the Financing Documents, including by complying with its obligations under the Financing Commitments, (ii) arrange and obtain the proceeds of the Financing on terms and conditions described in the Financing Commitments, (iii) negotiate and enter into definitive financing agreements with respect to the Financing on terms and conditions described in the Financing Commitments, so that Sellersuch agreements are in effect as promptly as practicable but in any event no later than the Closing Date (any definitive agreements entered into in respect of the Financing being referred to as the “Financing Agreements”), and (iv) consummate the CompanyFinancing at or prior to Closing. Buyer’s Parents and Buyer shall provide to Seller copies of all documents relating to the Financing and shall keep Seller informed on a reasonably current basis and in reasonable detail of material developments in respect of the financing process relating thereto, including by from time to time advising Seller of the Company Subsidiariesstatus of the Financing. Prior to the Closing, their respective Affiliates each Buyer’s Parent and their respective directors, officers, employees, agents and representatives have no responsibility for, Buyer shall not (and shall not incur any liability to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closingpermit their Affiliates to) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf of, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter Financing Commitments or other documentation relating to the Equity Financing other than to increase without the amount prior written consent of Seller.
(b) In the event that any portion of the Equity Financing. In additionFinancing becomes unavailable in the manner or from the sources contemplated in the Financing Commitments (or any Financing Agreement relating thereto), (i) Buyer’s Parents and Buyer shall take immediately notify Seller and (ii) Buyer’s Parents and Buyer shall use their best efforts to arrange to obtain any such portion from alternative sources, as promptly as practicable following the occurrence of such event, including by entering into definitive agreements with respect thereto (any such definitive agreements in respect of alternative financing also shall constitute Financing Agreements hereunder). Each Buyer’s Parent and Buyer shall (x) furnish to Seller complete, correct and executed copies of the Financing Agreements promptly upon their execution, (y) give Seller prompt notice of any breach by any party of any of the Financing Commitments, any alternative and/or supplemental financing commitment, or the Financing Agreements of which either Buyer’s Parent or Buyer becomes aware or any termination thereof and (z) otherwise keep Seller reasonably informed of the status of its efforts to arrange the Financing (or any replacement and/or supplement thereof). Each Buyer’s Parent and Buyer shall, shall cause their Affiliates to, and shall use their best efforts to cause to be takentheir Representatives to, all actions comply with the terms, and do, or cause to be done, all things necessary, proper or advisable to obtain the Equity Financing, including to (v) maintain in effect the Equity Commitment Letter, (w) satisfy on a timely basis all conditions applicable to Buyer in such Equity Commitment Letter that are within its controlthe conditions, (x) consummate the Equity Financing at or prior to the Closing, (y) enforce its rights (including through litigation) under the Equity Commitment Letter, including seeking any specific performance of the parties thereunder and (z) cause Financing Commitments, any alternative financing commitments, the financing sources Financing Agreements and any other Persons providing related fee and engagement letters. Any material breach of the Financing Commitments, the Financing Agreements, any alternative financing to fund the Equity Financing no later than the Closingcommitment and any related fee and engagement letter by either Buyer’s Parent or Buyer shall be deemed a breach by Buyer’s Parents and Buyer of this Section 5.16.
(c) Seller willIn the event that all conditions in Section 6.1 of this Agreement have been satisfied or, upon funding will be satisfied, each Buyer’s Parent and will cause the Company and the Company Subsidiaries to, and will Buyer shall use its commercially reasonable their best efforts to cause its Affiliates and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide Buyer all cooperation reasonably requested by Buyer that is customary and necessary in connection with arranging and obtaining the Equity such Persons providing such Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) fund on or around the Closing (Date the “Debt Financing”), and causing including by enforcing their rights under the conditions in agreements governing Financing Commitments to cause the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, funded at the Closing. Each Buyer’s Parent and Buyer acknowledge and agree that (i) instructing appropriate officers the Closing is not conditioned on the availability of the Financing or any alternative financing arrangement, and employees of Seller, the Company and the Company Subsidiaries to be available, on a reasonable basis and upon reasonable advance notice, to meet with prospective lenders and investors in customary presentations and due diligence sessions, (ii) delivering the unaudited consolidated balance sheets Seller shall be entitled to seek specific performance of the Company and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information in connection with “know your customer” and anti-money laundering rules, (iii) providing customary and reasonable assistance with respect to each Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing Parent and disclosure documents and customary information in connection therewithBuyer’s obligations under this Section 5.16, including the delivery of customary authorization letters to authorizing the distribution of information to financing sources, (iv) providing access to the Books and Records and (v) assisting in Buyer’s preparation, execution Parents and delivery of definitive documentation in connection with Buyer’s obligation to enforce their rights under the Equity Financing and Commitments to cause the Debt Financing. Buyer shall promptly upon request by Seller and from time Financing to time pay to or reimburse Seller for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company, any Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing the assistance contemplated by this Section 6.7(c)be funded at Closing.
(d) For Notwithstanding anything herein to the avoidance contrary, each of doubtSeller and Seller’s Parent (and any of its stockholders, partners, members, Affiliates, including the Target Company, directors, officers, employees, representatives or agents) agrees that it will not bring any Action, including any cross-claim or third party claim of any kind or description, whether in Law or not in equity, whether in contract or in tort or otherwise, against the Equity Financing or Sources in connection with this Agreement, the Debt Financing Commitments, the Financing Documents, the Financing (or any alternative financingother financing of all or a portion of the Purchase Price) has been obtained, Buyer shall continue or in any way relating to be obligated to consummate this Agreement or any of the transactions contemplated hereby or by this Agreement subject only the Financing Commitments, the Financing Documents or Financing (or any other financing of all or a portion of the Purchase Price), including any dispute arising out of or relating in any way to the satisfaction Financing Documents, the Financing Commitments or waiver any agreement entered into by the Financing Sources in connection with the Financing (or any other financing of all or a portion of the conditions set forth in Section 8.1 Purchase Price) or the performance thereof; provided that nothing herein shall limit Seller’s rights against Buyer and Section 8.2 and to Buyer’s termination rights Parents under Article IXSection 5.16(c). For purposes of this Agreement, if applicable“Financing Sources” means the Lenders and any Person that provides, or has or in the future enters into any Contract with Buyer or any of its Affiliates to provide, any of the Financing (or any other financing of all or a portion of the Purchase Price), any of such Person’s Affiliates and any of such Person’s or any of its Affiliates’ respective current, former or future officers, directors, employees, agents, representatives, stockholders, limited partners, managers, members or partners.
Appears in 1 contract
Financing Activities. (a) Buyer acknowledges and agrees that Seller, the Company, the Company Subsidiaries, their respective Affiliates and their respective directors, officers, employees, agents and representatives have no responsibility for, and shall not incur any liability will use its reasonable best efforts to any Person under, any financing that Buyer may raise in connection with the transactions contemplated hereby or any cooperation provided pursuant to this Section 6.7 (other than, in the case of the Company and the Company Subsidiaries, for obligations incurred upon (but subject to the occurrence of the Closing) or immediately after giving effect to the Closing). Any offering materials and other documents prepared by or on behalf oftake, or utilized by, Buyer or its Affiliates or Buyer’s financing sources in connection with Buyer’s financing activities in connection with the transactions contemplated hereby, which includes any information provided by Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, including any offering memorandum, banker’s book, lender presentation or similar document, or any other written offering materials, used in connection with any debt or securities offering or other such Buyer financing shall include a conspicuous disclaimer to the effect that none of Seller, the Company, the Company Subsidiaries or their respective Affiliates and each of their respective Representatives, has any responsibility for the content of such document and disclaim all responsibility therefor.
(b) Buyer shall not agree to, or permit, any amendment or modification of, or waiver under, the Equity Commitment Letter or other documentation relating to the Equity Financing other than to increase the amount of the Equity Financing. In addition, Buyer shall take or to cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Equity FinancingFinancing on the terms and conditions described in the Financing Commitments, including using reasonable best efforts to (vi) maintain in effect the Equity Commitment LetterFinancing Commitments, (wii) negotiate definitive agreements with respect to the Debt Financing on terms and conditions (including, as necessary, the “flex” provisions contained in the Redacted Fee Letter) as specified in the Debt Financing Letter (any such agreements, the “Definitive Debt Agreements”), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions that are applicable to Buyer or Merger Sub in the Debt Financing Letter or the Definitive Debt Agreements, as applicable, and comply with its obligations thereunder, and (iv) upon the satisfaction or waiver of such Equity Commitment Letter that are within its controlconditions, (x) consummate the Equity Debt Financing at or prior to the Closing as set forth in Section 1.2. In furtherance and not in limitation of the foregoing, in the event that all conditions to the Debt Financing Letter (and if Definitive Debt Agreements have been entered into, to such respective Definitive Debt Agreements) have been satisfied, and all of the conditions set forth in Sections 6.1 and 6.2 have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing), (y) Buyer will use its reasonable best efforts to enforce its rights under the applicable Debt Financing Letter and Definitive Debt Agreements, as the case may be, including by suit or other appropriate proceeding. Buyer will have the right from time to time to amend, modify or replace the Financing Commitments; provided, that Buyer will not, without the prior written consent of the Companies, agree to, or permit, any amendment, modification or replacement of, or waiver under, the Financing Commitments or the definitive agreements relating to the Financing Commitments if such amendment, modification, replacement or waiver would (A) reduce the aggregate amount of the Debt Financing, (B) impose new or additional conditions or otherwise expand or amend any of the conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Financing Commitments, or (C) reasonably be expected to prevent, impede or delay the consummation of the Financing or the transactions contemplated by this Agreement or make the funding of the Financing less likely to occur or adversely impact the ability of the Buyer (or with respect to the Equity Financing, the Companies) to enforce its rights against the other parties to the Financing Commitments or the definitive documents with respect thereto, without the prior consent of the Companies; provided, further, that notwithstanding the foregoing, Buyer may amend the Debt Financing Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Letter as of the date of this Agreement if the addition of such parties individually or in the aggregate, would not reasonably be expected to delay or prevent the consummation of the Debt Financing or the Closing. Buyer will deliver to the Companies and the Representatives copies of any such amendment, modification, replacement or waiver promptly upon its execution thereof. If, notwithstanding the use of reasonable best efforts by Buyer to satisfy its obligations under this Section 5.15(a), any portion of the Debt Financing or Definitive Debt Documents is terminated or expires or otherwise becomes unavailable on the terms and conditions (including through litigationthe “flex” provisions contained in the Redacted Fee Letter) under specified in the Equity Commitment LetterDebt Financing Letter or the Definitive Debt Agreements, Buyer will promptly notify the Companies and the Representatives and will use its reasonable best efforts to arrange and obtain alternative financing from the same and/or alternative sources on terms and conditions not less favorable, taken as a whole, to Buyer (as determined in the reasonable judgment of Buyer), than those contained in the Debt Financing Letter (“Alternative Financing”), upon terms and conditions which would not have any of the effects specified in clauses (A), (B), and (C) of this Section 5.15(a) as promptly as reasonably practicable following the occurrence of such event. Buyer will keep Companies informed on a reasonably current basis of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, including seeking (1) giving Companies and the Representatives prompt written notice of any specific performance of material adverse change with respect to the parties thereunder Debt Financing, including if at any time the Debt Financing Letter expires or is terminated for any reason or if any financing source party to the Debt Financing Letter notifies Buyer that such source no longer intends to provide financing to Buyer on the terms set forth therein, and (z2) cause upon Companies reasonable request, advising and updating the Companies, in a reasonable level of detail, with respect to status and proposed funding date. For purposes of this Agreement, references to “Financing” and “Debt Financing” and “Definitive Debt Documents” will include the financing sources contemplated by the Debt Financing Commitment as permitted by this Section 5.15(a) to be amended, modified or replaced and any other Persons providing financing references to fund the Equity “Debt Financing no later than the ClosingLetter” will include such documents as permitted by this Section 5.15(a) to be amended, modified or replaced, in each case from and after such amendment, modification, or replacement.
(cb) Seller The Companies will, and will cause the Company and the Company their respective Subsidiaries to, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives toprovide all cooperation reasonably requested by Buyer in connection with the arrangement of the Debt Financing, in each case at Buyer’s sole cost and expense, provide Buyer all expense (provided that such requested cooperation reasonably does not unreasonably interfere with the ongoing operations of the Companies and their Subsidiaries and provided that such requested by Buyer that cooperation is customary and necessary of the type customarily provided in connection with arranging and obtaining the Equity Financing and/or any debt financing to be incurred by Buyer, the Company and/or the Company Subsidiaries (including any asset-backed loan or working capital facility) on or around the Closing (the “Debt Financing”similar financings), and causing the conditions in agreements governing the Equity Financing and the Debt Financing to be satisfied, which cooperation shall include but not be limited to, by (i) instructing appropriate officers and employees of Seller, the Company and the Company Subsidiaries to be available, on participating at reasonable times in a reasonable basis and upon reasonable advance noticenumber of meetings, to meet with prospective lenders and investors in customary presentations presentations, road shows, drafting sessions and due diligence sessionssessions (including sessions with prospective lenders, investors and rating agencies), (ii) delivering assisting with the unaudited consolidated balance sheets preparation of the Company materials for rating agency presentations, bank information memoranda, offering documents, private placement memoranda and the Company Subsidiaries as of September 30, 2018 as soon as practicable following their completion and customary information other similar documents including road show or investor meeting slides in connection with the Debt Financing (including requesting customary consents of accountants for use of their reports in any materials relating to the Debt Financing and the delivery of one or more customary representation letters and/or customary authorization letters), (iii) reasonably cooperating with the pledging of collateral in connection with the Debt Financing as may be reasonably requested by Buyer, (iv) taking actions reasonably necessary to permit the Financing Sources to evaluate the Companies’ inventory, current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements required to be established as of the Closing under the Debt Financing Commitment, (v) reasonably cooperating with the marketing efforts of Buyer and the Lenders for any portion of the Debt Financing, (vi) providing a certificate of the chief financial officer of each Company and its Subsidiaries with respect to solvency matters as of the Closing on a pro forma basis in the form attached to the Debt Financing Commitment, (vii) if requested by a financing source at least three days prior to Closing, providing information related to each Company which such financing source has reasonably requested and that such financing source has determined is required by regulatory authorities under applicable “know your customer” and anti-anti money laundering rules, (iii) providing customary rules and reasonable assistance with respect to Buyer’s preparation of appropriate presentations, information memos, offering memoranda or other marketing and disclosure documents and customary information in connection therewithregulations, including the delivery USA Patriot Act, (viii) using reasonable best efforts to obtain customary accountants’ comfort letters and customary local counsel legal opinions to the extent required from the Financing Sources, including furnishing, prior to the commencement of the Marketing Period, drafts of such comfort letters (which will provide “negative assurance” comfort) which such accountants are prepared to issue upon completion of customary authorization letters to authorizing the distribution of information to financing sourcesprocedures, (ivviii) providing access to facilitating the Books and Records and (v) assisting in Buyer’s preparation, execution and delivery (at the Closing) of definitive documentation documents related to the Debt Financing on terms specified by the Debt Financing Letter to the extent required to be delivered as of Closing, (ix) obtaining customary payoff letters (including release of Liens) relating to the payoff of all existing indebtedness to be terminated on or prior to the Closing, and (x) using reasonable best efforts to furnish to Buyer and the Financing Sources as promptly as reasonably practicable, but in the event such information is required to be delivered by the Debt Financing Letter, no later than the time called for by the Debt Financing Letter, all financial, business and other information regarding the Companies as may be reasonably requested by Buyer or its Financing Sources, to be contained in a customary offering memorandum containing all customary information (other than a “description of notes” and information customarily provided by the initial purchasers and their counsel), including annual audited and interim unaudited financial statements (including interim unaudited financial statements as of, and for the nine-month period ending, September 30, 2012) (each Company’s accountants will perform a SAS 100 review on any such interim unaudited financial information), pro forma financial statements, management’s discussion and analysis of financial condition and results of operations, business and other financial and other data of the type and form that are customarily included in offering memoranda for private placements of high-yield debt securities pursuant to Rule 144A promulgated under the Securities Act, including information required by Regulation S-X and Regulation S-K under the Securities Act (which is understood not to include consolidating and other financial statements and data that would be required by Sections 3-10 and 3-16 of Regulation S-X, Item 402 of Regulation S-K and information regarding executive compensation) (information required to be delivered pursuant to this clause (x) being referred to as the “Required Information”); and provided that, the foregoing notwithstanding in this clause (b), (A) no obligation of the Companies under any such agreement, certificate, document or instrument will be effective until the Closing, (B) the pre-Closing directors of the Companies will not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, (C) the Companies will not be required to execute prior to the Closing any Definitive Debt Agreements or other documents in connection with the Equity Debt Financing (except for documents that would only become effective at and as of the Closing), (D) except as expressly provided above, the Companies will not be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing, and (E) the Companies will not be required to pay any commitment fee or other fee or incur any monetary liability or expenses or give any indemnity with respect to the Financing that is not contingent on Closing. If the Closing does not occur, Buyer shall promptly upon request by Seller and from time to time pay to or will reimburse Seller such Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by Seller, the Company, any such Company Subsidiary, any Affiliate of Seller or their Representatives in connection with providing such cooperation (and any such amounts will not be included will not be included as a liability in any calculation of Net Worth pursuant to Section 2.4(e)). Buyer will indemnify and hold harmless the assistance contemplated Companies and their Subsidiaries from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred by them in connection with the arrangement of the Debt Financing and any information used in connection therewith. All non-public or other confidential information provided by or on behalf of any Company and its Subsidiaries pursuant to this Section 6.7(c)5.15(b) will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information to potential sources of capital and to rating agencies and prospective lenders and investors during syndication of the Financing, subject to the potential sources of capital, prospective lenders and investors being informed by Buyer of the obligations of confidentiality relating to Representatives (as defined in the Confidentiality Agreement) of Buyer under the Confidentiality Agreement and agreeing to maintain the confidentiality thereof. The Companies hereby consent to the reasonable use of the Companies’ respective logos in connection with the Debt Financing; provided, that such logos are used in a manner that is not intended to harm or disparage the Companies or their marks.
(dc) For Notwithstanding the avoidance of doubtforegoing, whether or Buyer acknowledges and agrees that this Agreement and the Transactions are not the Equity Financing or the Debt contingent on Buyer’s ability to obtain Financing (including any alternate financing contemplated by Section 5.15(a)) or any alternative financing) has been obtained, Buyer shall continue specific amount or terms with respect to be obligated to consummate the transactions contemplated by this Agreement subject only to the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2 and to Buyer’s termination rights under Article IX, if applicablesuch Financing.
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