Financing and Cooperation. (a) Purchasers shall use their reasonable best efforts to obtain debt financing on terms acceptable to Purchasers in their sole discretion in an amount sufficient to enable Purchasers to pay the Purchase Price (the “Financing”). In the event that the Purchasers enter into any commitment letter or other binding agreement to provide the Financing (a “Commitment Letter”), the Purchasers shall promptly (and in any event within two (2) Business Days after execution of such Commitment Letter) provide a copy of the Commitment Letter to the Sellers. In the event that a Commitment Letter is executed, the Purchasers shall use their reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Commitment Letter, including by using reasonable best efforts to (i) maintain in effect the Commitment Letter and negotiate a definitive agreement with respect to the Commitment Letter on the terms and conditions set forth in the Commitment Letter (or on terms not materially less favorable, in the aggregate, to the Purchasers, taken as a whole than the terms and conditions in the Commitment Letter), (ii) not amend or modify the terms of the Commitment Letter in any manner that would reasonably be expected to adversely impact the ability of the Purchasers to consummate the Transaction prior to the Outside Date, (iii) ensure the accuracy of all representations and warranties of the Purchasers in the Commitment Letter, (iv) comply with all covenants and agreements of the Purchasers in the Commitment Letter and (v) satisfy on a timely basis all conditions applicable to the Purchasers set forth in the Commitment Letter that are within their control. (b) During the period commencing on the date of this Agreement and ending on the earlier of (i) the termination of this Agreement and (ii) the Closing, the Sellers agree (subject to Section 5.5(a)) to, and shall use their commercially reasonable efforts to cause their respective representatives, including legal and accounting advisors, to provide the Purchasers with such cooperation in connection with the Purchasers’ arrangement of the Financing as may be reasonably requested by the Purchasers, including (i) assisting in the preparation for, and participating in, a reasonable number of meetings, presentations, due diligence sessions and similar presentations to and with rating agencies and the parties acting as lead arrangers or agents for, and prospective purchasers and lenders of, the Financing, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, information memoranda (including the delivery of one or more customary representation letters), and similar documents required in connection with the Financing, (iii) using commercially reasonable efforts to obtain consents of accountants for use of their reports in any materials relating to the Financing, (iv) furnishing the Purchasers and their sources of Financing with financial statements, financial data and other due diligence information of the Sellers (other than, prior to the date upon which a Commitment Letter is executed, any of the information listed on Schedule 5.14(b) of the Disclosure Letter), in each case prepared by Sellers in the ordinary course of business; provided, however, that the Sellers shall only be obligated to furnish such information to sources of Financing who have executed a confidentiality agreement with the Sellers in a form and in substance reasonably satisfactory to the Sellers, and (v) facilitating the pledging of collateral and using commercially reasonable efforts to obtain surveys and title insurance as reasonably requested by Purchasers in order to facilitate the Financing; provided, however, that in no event shall the Sellers be required to (A) cooperate in such a manner as would unreasonably interfere with the business or operations of the Spheris Entities, (B) agree to pay any fees, reimburse any expenses or give any indemnities, (C) authorize, approve, adopt, execute or deliver any financing or credit agreement or any other document or instrument in connection therewith; provided that Sellers will use commercially reasonable efforts to cause any officers or other employees that will be employees of a Purchaser upon consummation of the Closing to execute documents reasonably requested by the Purchasers in connection with the Financing so long as such execution is made in such officer or employee’s capacity as an officer or employee of the applicable Purchaser, (D) terminate, or take any action to terminate the Financing Agreement, (E) take any action that would require the Sellers to pay any material out-of-pocket expenses or (F) enter into any agreement or commitment. Purchasers shall (i) reimburse Sellers for reasonable out-of-pocket costs incurred by Sellers to comply with this Section 5.14 and (ii) indemnify Sellers for any loss resulting from Sellers’ compliance with this Section 5.14. (c) Purchasers shall keep the Sellers informed with respect to all material activity concerning the status of the Financing, including any termination of a Commitment Letter or failure to satisfy any condition to financing thereunder.
Appears in 3 contracts
Samples: Stock and Asset Purchase Agreement (CBaySystems Holdings LTD), Stock and Asset Purchase Agreement (Medquist Inc), Stock and Asset Purchase Agreement (Medquist Inc)
Financing and Cooperation. (a) Purchasers Parent shall use their reasonable best efforts take, or cause to be taken, all actions, all things necessary, proper or advisable to obtain debt financing on terms acceptable to Purchasers in their sole discretion in an amount sufficient to enable Purchasers to pay the Purchase Price (the “Financing”). In the event that the Purchasers enter into any commitment letter or other binding agreement to provide the Financing (a “Commitment Letter”), the Purchasers shall promptly (and in any event within two (2) Business Days after execution of such Commitment Letter) provide a copy proceeds of the Commitment Letter to the Sellers. In the event that a Commitment Letter is executed, the Purchasers shall use their reasonable best efforts to consummate the Common Equity Financing on the terms and conditions set forth described herein and in the Common Equity Commitment LetterLetter prior to the Termination Date, including by using reasonable best efforts to (i) cause the other parties thereunder to maintain in effect the Common Equity Commitment Letter Letter. Subject to Section 6.11(c)(ii) below, Parent shall use reasonable best efforts to take, or cause to be taken, all actions, and negotiate a definitive agreement with respect do, or cause to be done, all things necessary, proper or advisable to obtain the Commitment Letter proceeds of the Third Party Financing on the terms and conditions set forth described herein and in the applicable Third Party Financing Commitment Letter (or on terms not materially less favorable, in the aggregate, prior to the PurchasersTermination Date, taken as a whole than including (i) maintaining in effect the applicable Third Party Financing Commitment Letter, (ii) negotiating definitive agreements or other relevant documentation with respect to the Third Party Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the applicable Third Party Financing Commitment Letter (including, in respect of the Debt Commitment Letter), as necessary, the “flex” provisions contained in any related fee letter to such Debt Commitment Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect (ii) not amend or modify including with respect to timing, taking into account the terms expected timing of the Commitment Letter in any manner that would reasonably be expected to adversely impact Marketing Period) the ability of the Purchasers Parent and Merger Sub to consummate the Transaction prior to the Outside Date, transactions contemplated herein and (iii) ensure taking into account the accuracy of all representations and warranties expected timing of the Purchasers in the Commitment LetterMarketing Period, (iv) comply with all covenants and agreements of the Purchasers in the Commitment Letter and (v) satisfy satisfying on a timely basis all conditions applicable to Parent and its Subsidiaries in the Purchasers Third Party Financing Commitment Letters and the Definitive Agreements that are within its control and complying with its obligations thereunder. In the event that all conditions contained in any Third Party Financing Commitment Letter (other than, the availability of the Common Equity Financing) have been satisfied (or upon funding will be satisfied), Parent shall use its reasonable best efforts to cause the parties thereto to comply with their respective obligations, including to fund the Third Party Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date. Parent shall comply with its obligations, and use reasonable best efforts to enforce its rights, under the Third Party Financing Commitment Letters and the Definitive Agreements, in each case in a timely and diligent manner. In furtherance of and not in limitation of the foregoing, in the event that (w) the Marketing Period is completed, (x) any portion of the high yield bond financing contemplated by the Debt Commitment Letter is unavailable, (y) all closing conditions contained in Section 7.1 and Section 7.2 shall be satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing, provided that such conditions are capable of being satisfied as of such day assuming the Closing was to occur on such day, and other than those conditions the failure of which to be satisfied is a result of a breach by Parent or Merger Sub of their representations, warranties, covenants or agreements contained in this Agreement) and (z) the bridge facilities contemplated by the Debt Commitment Letter (or alternative bridge facilities obtained in accordance with this Section 6.11) are available on the terms and conditions described in the Debt Commitment Letter (or replacements thereof), then each of Parent and Merger Sub shall cause the proceeds of such bridge financing to be used in accordance with this Agreement in lieu of such portion of the high yield bond financing.
(b) Parent shall not, without the prior written consent of the Company: (A) permit any amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letters if such amendment, modification, waiver or remedy (w) adds new conditions (or modifies any existing conditions in a manner adverse to Parent or the Company or the transactions contemplated hereby) to the consummation of all or any portion of the Financing, (x) reduces the aggregate amount of the Financing, (y) adversely affects the ability of Parent to enforce its rights against other parties to the Third Party Financing Commitment Letters or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Third Party Financing Commitment Letters as in effect on the date hereof or in the Definitive Agreements or (z) taking into account the expected timing of the Marketing Period, could otherwise reasonably be expected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement (provided, that, for the avoidance of doubt, Parent may amend any Third Party Financing Commitment Letter to add purchasers, lenders, lead arrangers, book-runners, syndication agents or similar entities who had not executed any Third Party Financing Commitment Letter as of the date of this Agreement; provided further, that, no such addition shall relieve the original Financing Sources of their obligations under the Commitment Letters prior to the initial funding of the Financing, except as set forth in the Commitment Letters); or (B) terminate any Commitment Letter that are within their controlunless such Commitment Letter is replaced with a new commitment that, were it structured as an amendment to an existing Commitment Letter, would satisfy the requirements of the foregoing clause (A). Parent shall promptly deliver to the Company copies of any such amendment, modification, waiver or replacement.
(b) During the period commencing on the date of this Agreement and ending on the earlier of (i) In the termination of this Agreement and (ii) the Closing, the Sellers agree (subject to Section 5.5(a)) to, and shall use their commercially reasonable efforts to cause their respective representatives, including legal and accounting advisors, to provide the Purchasers with such cooperation in connection with the Purchasers’ arrangement event that any portion of the Debt Financing as may be reasonably requested by the Purchasersbecomes unavailable, including (i) assisting in the preparation for, and participating in, a reasonable number of meetings, presentations, due diligence sessions and similar presentations to and with rating agencies and the parties acting as lead arrangers or agents for, and prospective purchasers and lenders of, the Financing, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, information memoranda (including the delivery of one or more customary representation letters), and similar documents required in connection with the Financing, (iii) using commercially reasonable efforts to obtain consents of accountants for use of their reports in any materials relating to the Financing, (iv) furnishing the Purchasers and their sources of Financing with financial statements, financial data and other due diligence information regardless of the Sellers (other thanreason therefor, prior to the date upon which a Commitment Letter is executed, any of the information listed on Schedule 5.14(b) of the Disclosure Letter), in each case prepared by Sellers in the ordinary course of business; provided, however, that the Sellers shall only be obligated to furnish such information to sources of Financing who have executed a confidentiality agreement with the Sellers in a form and in substance reasonably satisfactory to the Sellers, and (v) facilitating the pledging of collateral and using commercially reasonable efforts to obtain surveys and title insurance as reasonably requested by Purchasers in order to facilitate the Financing; provided, however, that in no event shall the Sellers be required to Parent will (A) cooperate in such a manner as would unreasonably interfere with the business or operations of the Spheris Entities, (B) agree to pay any fees, reimburse any expenses or give any indemnities, (C) authorize, approve, adopt, execute or deliver any financing or credit agreement or any other document or instrument in connection therewith; provided that Sellers will use commercially reasonable best efforts to cause any officers or other employees that will be employees of a Purchaser upon consummation of the Closing to execute documents reasonably requested by the Purchasers in connection with the Financing so long as such execution is made in such officer or employee’s capacity as an officer or employee of the applicable Purchaser, (D) terminate, or take any action to terminate the Financing Agreement, (E) take any action that would require the Sellers to pay any material out-of-pocket expenses or (F) enter into any agreement or commitment. Purchasers shall (i) reimburse Sellers for reasonable out-of-pocket costs incurred by Sellers to comply with this Section 5.14 and (ii) indemnify Sellers for any loss resulting from Sellers’ compliance with this Section 5.14.
(c) Purchasers shall keep the Sellers informed with respect to all material activity concerning the status of the Financing, including any termination of a Commitment Letter or failure to satisfy any condition to financing thereunder.to
Appears in 1 contract
Financing and Cooperation. (a) Purchasers Prior to the Closing Date, upon the request of the Company, Parent shall use their keep the Company reasonably informed in reasonable best detail of the status of its efforts to obtain debt financing on terms acceptable to Purchasers in their sole discretion in an amount sufficient to enable Purchasers to pay arrange the Purchase Price (the “Financing”). In the event The Parent Parties acknowledge and agree that the Purchasers enter into any commitment letter or other binding agreement to provide the Financing (a “Commitment Letter”), the Purchasers shall promptly (and in any event within two (2) Business Days after execution of such Commitment Letter) provide a copy obtaining of the Commitment Letter Debt Financing is not a condition to Closing and the Sellers. In consummation of the event that Transactions shall not be conditioned on, or delayed or postponed as a Commitment Letter is executed, result of the Purchasers shall use their reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Commitment Letter, including by using reasonable best efforts to (i) maintain in effect the Commitment Letter and negotiate a definitive agreement with respect to the Commitment Letter on the terms and conditions set forth in the Commitment Letter obtaining of (or on terms not materially less favorable, in the aggregate, failure to obtain) the Purchasers, taken as a whole than the terms and conditions in the Commitment Letter), (ii) not amend or modify the terms of the Commitment Letter in any manner that would reasonably be expected to adversely impact the ability of the Purchasers to consummate the Transaction prior to the Outside Date, (iii) ensure the accuracy of all representations and warranties of the Purchasers in the Commitment Letter, (iv) comply with all covenants and agreements of the Purchasers in the Commitment Letter and (v) satisfy on a timely basis all conditions applicable to the Purchasers set forth in the Commitment Letter that are within their controlDebt Financing.
(b) During the period commencing on the date of this Agreement and ending on the earlier of (i) the termination of this Agreement and (ii) Prior to the Closing, the Sellers agree (subject to Section 5.5(a)) toCompany shall, and shall cause each its Subsidiaries to, use its and their commercially reasonable efforts to cause its and their respective representativesRepresentatives to, including legal provide to the Parent Parties and accounting advisorstheir Representatives, at Parent’s sole expense, all cooperation reasonably requested by Parents and/or its Affiliates to provide the Purchasers with such cooperation assist them in connection with the Purchasers’ arrangement of Financing, to the Financing as may be reasonably requested by extent not unreasonably interfering with the Purchasersbusiness of the Company and its Subsidiaries, including including: (i) assisting upon reasonable notice, cause management of the Acquired Companies with appropriate seniority and expertise to participate in the preparation for, and participating in, a reasonable number of meetingsmeetings and presentations with prospective lenders, presentations, due diligence sessions and similar presentations to and with rating agencies and the parties acting as lead arrangers or agents for, investors at reasonable times and prospective purchasers and lenders of, the Financinglocations mutually agreed, (ii) assisting assist with the preparation of materials for customary rating agency presentations, offering documents, any prospectus, private placement memoranda, banking information memoranda and similar documents reasonably necessary in connection with the Financing (including the delivery Offering) and provide reasonable cooperation with the due diligence efforts of one any source of any Financing; provided, however, that any such memoranda or more prospectuses may, at the election of Parent, contain disclosure and financial statements with respect to the Company or the Surviving Entity and/or its Subsidiaries as the obligor, (iii) (A) using commercially reasonable efforts to furnish Parent in a timely manner with customary representation lettersfinancial and other information regarding the Company and its Subsidiaries, including non-public financial information, as may be reasonably required by Parent in connection with due diligence relating to the Financing, (B) using commercially reasonable efforts to assist Parent in connection with the preparation of pro forma financial information and financial statements to the extent reasonably required by Parent or any Financing Source, it being agreed that neither the Company nor any of its Subsidiaries or Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information or financial statements, (C) cooperating with Parent in Parent equity capitalization that is required for such pro forma financial information or financial statements, (D) as promptly as practicable, informing Parent if the chief executive officer, chief financial officer, treasurer or controller of the Company shall have actual knowledge of any facts as a result of which a restatement of any financial statements of the Company in order for such financial statements to comply with GAAP, (E) make available to Parent the financial and operating data and other information with respect to the Acquired Company as Parents (or its Affiliates) may from time to time reasonably request in connection with the preparing of the Offering Documents and Parent’s (or its Affiliates) response to any inquires or comments received by any Governmental Entity in connection with the filing of the Offering Document, and (F) using commercially reasonable efforts to cause the Company’s auditors and certain directors and senior officers of the Company and its Subsidiaries as reasonably determined by Parent to participate in oral due diligence sessions to take place in connection with the Offering at reasonable times and upon reasonable notice (iv) reasonably facilitating the transactions described in this Section 5.18 and assist with the preparation of customary definitive loan documentation contemplated by the Financing (including schedules), including executing and similar delivering any customary guarantee, pledge and security documents, indentures, currency or interest rate hedging arrangements, or other certificates or document as may be reasonably requested by Parent or the Financing Sources (provided that any such documents or agreements and any obligations contained in such documents shall be effective no earlier than as of the Effective Time); (v) provide to Parent upon written request all documentation and other information with respect to the Company and the Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act in connection with the Financing, (iiivi) as may be reasonably requested by Parent to facilitate the Financing, following the obtainment of the Company Shareholder Approval, form new direct and indirect wholly owned Subsidiaries of the Company and the other Acquired Companies pursuant to documentation reasonably satisfactory to Parent and the Company, (vii) as may be reasonably requested by Parent, and no earlier than immediately prior to the Effective Time, and provided such actions would not adversely affect the Tax status of the Company or any of its Subsidiaries or cause the Company to be subject to additional Taxes that are not indemnified by Parent under Section 5.18(d), transfer or otherwise restructure its ownership of existing Acquired Companies, properties or other assets, in each case, pursuant to documentation reasonably acceptable to Parent and the Company, (viii) subject to the confidentiality requirements of Section 5.18(e), provide reasonably timely and customary access to diligence materials reasonably available to the Acquired Companies and properties during normal business hours and on reasonable advance notice to allow Financing Sources and their representatives to complete all reasonable and customary due diligence, (ix) provide reasonable and customary assistance with respect to attempting to obtain any consents associated therewith (effective no earlier than the Effective Time), (x) to the extent reasonably requested by a Financing Source, attempt to obtain estoppels and certificates from tenants, lenders, managers, franchisors, ground lessors and counterparties to REAs in form and substance reasonably satisfactory to such Financing Source, (xi) cooperate in connection with the repayment or defeasance of any existing indebtedness of the Company or any Acquired Companies as of the Effective Time and the release of related Liens following the repayment in full of such indebtedness, including using commercially reasonably efforts to deliver such customary payoff, defeasance or similar notices under any existing loans of the Company or any of Acquired Companies as are reasonably requested by Parent (provided that the Company and the Acquired Companies shall not be required to deliver any notices that are not conditioned on the occurrence of the Effective Time) (the “Payoff Letters”), (xii) to the extent reasonably requested by Parent, obtain customary accountants’ comfort letters and consents to the use of accountants’ audit reports relating to the Company and its Subsidiaries, including any comfort letters that are in a form and substance that is customarily given to underwriters and Governmental Authorities, as the case may be, in an underwritten public offering in Canada, with such “long form” comfort letter being addressed to Parent and the underwriters, provided that such “long form” comfort letter shall only relate to the Company, its Subsidiaries, the Company Capital Shares and the Financial Statements (xiii) cooperate with obtaining title insurance with respect to each Owned Real Property and Ground Leased Real Property and (xiv) to the extent reasonably requested by a Financing Source, permit Parent and its Representatives to conduct survey, appraisal and environmental and engineering inspections of each real estate property owned and, subject to obtaining required third party consents with respect thereto (which the Company shall use reasonable efforts to obtain), leased by the Company or any of the Company Subsidiaries. Notwithstanding anything in this Section 5.18(b) to the contrary, the Company shall not be required to provide, or cause its Subsidiaries to provide, cooperation under this Section 5.18 to the extent that it: (A) requires the Acquired Companies to incur any Liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Financing prior to the Closing (except those fees and expenses that are reimbursed promptly or advanced by Parent); (B) except with respect to clauses (v), (vi) and (vii), requires the Acquired Companies or their respective directors, trustees, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Financing (other than with respect to customary authorization letters with respect to bank information memoranda) or adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained that is not contingent upon the Closing or that would be effective at or prior to the Effective Time; (C) provide access to or disclose information that the Company or any of its Subsidiaries determines would result in a loss or waiver of or jeopardize any attorney-client privilege, attorney work product or other legal privilege (provided that the Company shall use commercially reasonable efforts to obtain consents of accountants allow for use of their reports such access or disclosure in a manner that does not result in the events set out in this clause (C)); (D) results in any materials officer, trustee or director of the Acquired Companies incurring personal Liability with respect to any matter relating to the FinancingFinancing or requires any officer, (iv) furnishing the Purchasers and their sources of Financing with financial statementstrustee, financial data and director or other due diligence information Representative of the Sellers Company or any of its Subsidiaries to deliver any certificate that such officer, trustee, director or other Representative reasonably believes, in good faith, contains any untrue certifications; or (E) requires the Acquired Companies or their Representatives, as applicable, to waive or amend any terms of this Agreement. In no event shall the Company be in breach of this Agreement because of the failure to deliver any financial or other information that is not currently readily available to the Acquired Companies (other than, prior than information which an Acquired Company is entitled to receive and actually receives following request pursuant to Management Agreement Documents or Franchise Agreement Documents) on the date upon which a Commitment Letter hereof or is executed, any of the information listed on Schedule 5.14(b) of the Disclosure Letter), in each case not otherwise prepared by Sellers in the ordinary course of business; provided, however, that business of Acquired Companies at the Sellers shall only be obligated to furnish such information to sources of Financing who have executed a confidentiality agreement with time requested by Parent or for the Sellers in a form and in substance reasonably satisfactory to the Sellers, and (v) facilitating the pledging of collateral and using commercially reasonable efforts failure to obtain surveys and title insurance as reasonably requested review of any financial or other information by Purchasers in order to facilitate the Financing; provided, however, that in its accountants. In no event shall the Sellers Acquired Companies be required to (A) cooperate in such a manner as would unreasonably interfere with the business or operations of the Spheris Entities, (B) agree to pay any fees, reimburse any expenses commitment or other fee or give an indemnity or incur any indemnitiesLiability (including due to any act or omission by the Company, (C) authorize, approve, adopt, execute or deliver any financing or credit agreement its Subsidiaries or any other document of their respective Affiliates or instrument Representatives) or expense (including legal and accounting expenses) in connection therewith; with assisting Parent and Merger Sub in arranging the Debt Financing or as a result of any information provided that Sellers will use commercially reasonable efforts to cause any officers or other employees that will be employees of a Purchaser upon consummation of the Closing to execute documents reasonably requested by the Purchasers Company, its Subsidiaries or any of their respective Affiliates or Representatives in connection with the Financing so long as such execution is made in such officer or employee’s capacity as an officer or employee (except those fees and expenses reimbursed promptly by Parent). None of the applicable Purchaserrepresentations, (D) terminatewarranties or covenants of the Company set forth in this Agreement shall be deemed to apply to, or take deemed breached or violated by, any action of the actions taken by the Company, any of its Subsidiaries, or any of their respective Representatives at the request of Parent pursuant to terminate this Section 5.18(b).
(c) The Company hereby consents to the Financing Agreement, use of its and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Acquired Companies or the reputation or goodwill of the Acquired Companies.
(Ed) take any action that would require Parent shall reimburse the Sellers to pay any material Acquired Companies promptly upon demand for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Acquired Companies in connection with the cooperation under this Section 5.18, any action taken by them at the request of Parent pursuant to this Section 5.18 (including the dissolution and termination of any subsidiaries formed and documentation entered into pursuant to this Section 5.18) and shall indemnify and hold harmless the Acquired Companies from and against any and all out-of-pocket costs, expenses, losses, damages, claims, judgments, fines, penalties, interest, settlements, awards and Liabilities suffered or incurred by any of them in connection with the arrangement and consummation of the Debt Financing and any information used in connection therewith (Fother than the information provided in writing by the Company or the Acquired Companies to Parent specifically in connection with their obligations pursuant to Section 5.18(b)). This Section 5.18(d) enter into shall survive the termination of this Agreement (and in the event the Mergers and the other Transactions are not consummated, Parent shall promptly reimburse the Company for any agreement or commitment. Purchasers shall (i) reimburse Sellers for reasonable out-of-pocket costs incurred by Sellers to comply the Company or its Subsidiaries in connection with the cooperation under this Section 5.14 5.18 and (ii) indemnify Sellers for any loss resulting from Sellers’ compliance with this Section 5.14not previously reimbursed).
(ce) Purchasers shall keep Notwithstanding anything to the Sellers informed contrary in the Confidentiality Agreement, the Company agrees that Parent and its Representatives may initiate contact with respect to all material activity concerning and pursue potential lenders in connection with the status consummation of the Financingtransactions contemplated by this Agreement, in each case subject to the confidentiality and use restrictions applicable to “Representatives” (as defined in the Confidentiality Agreement) set forth in the Confidentiality Agreement. For the avoidance of doubt, without the prior written consent of the Company, in no event will Parent, Merger Sub or any of their respective Affiliates (which for this purpose will be deemed to include each direct investor in Parent or Merger Sub) enter into any agreement, arrangement or any other understanding, whether written or oral, with any potential debt financing source or sources that would reasonably be expected to limit, restrict, restrain, otherwise impair in any manner, directly or indirectly, the ability of such debt financing source or sources (including any termination lender of a Commitment Letter the Acquired Companies) to provide debt financing or failure other assistance to satisfy any condition to financing thereunderother party in any other transaction involving the Acquired Company (provided that the foregoing shall not prohibit the establishment of customary “tree” arrangements).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Condor Hospitality Trust, Inc.)
Financing and Cooperation. (a) Purchasers Each of Parent and Merger Sub shall use their its reasonable best efforts to obtain debt financing on terms acceptable to Purchasers in their sole discretion in an amount sufficient to enable Purchasers to pay the Purchase Price (the “Financing”). In the event that the Purchasers enter into any commitment letter or other binding agreement to provide the Financing (a “Commitment Letter”), the Purchasers shall promptly (and in any event within two (2) Business Days after execution of such Commitment Letter) provide a copy of the Commitment Letter to the Sellers. In the event that a Commitment Letter is executed, the Purchasers shall use their reasonable best efforts to consummate arrange the Financing on the terms and conditions described in the Commitment Letters (including any "market flex" and/or "securities demand" provisions applicable thereto) and shall not permit any amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Commitment Letters, if such amendment, modification, replacement or waiver (i) reduces the aggregate amount of the Financing available to Parent (including by changing the amount of fees to be paid or original issue discount except by operation of the "market flex" and/or "securities demand" provisions) to an amount below the amount required for the Required Payments, (ii) imposes new or additional conditions or otherwise expands or amends or modifies in a manner adverse to Parent or Merger Sub any of the conditions to the receipt of any portion of the Financing that is required to fund the Required Payments or (iii) would or would reasonably be expected to (A) materially delay or prevent the Closing, (B) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) in an amount required for the Required Payments less likely to occur or (C) adversely impact the ability of either Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements (as defined below), in any material respect (collectively, the "Prohibited Amendments"). Subject to the limitations set out in the first sentence of this Section 6.11(a), either Parent and Merger Sub may amend, supplement, modify or replace the Commitment Letters as in effect as of the date of this Agreement to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter or Preferred Commitment Letter as of the date of this Agreement; provided, however, that, no such addition shall relieve the original Financing Sources of their obligations under the Commitment Letters prior to the funding of the Financing, except as set forth in the Commitment LetterLetters. Parent shall promptly deliver to the Company copies of any such amendment, modification, replacement or waiver. For purposes of this Agreement (other than with respect to any representations made by either Parent or Merger Sub), (x) the term "Financing" shall be deemed to include the financing contemplated by the Commitment Letters as permitted to be amended, modified or replaced pursuant to this Section 6.11 (including by using any Alternative Financing (as defined below) and (y) the term "Commitment Letters" shall be deemed to include the Commitment Letters as may be permitted to be amended, modified or replaced pursuant to this Section 6.11 and any commitment letters with respect to any Alternative Financing and any related fee letters.
(b) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on the terms and conditions described herein and in the applicable Commitment Letter at or prior to the Closing, including using their reasonable best efforts to: (i) maintain in effect the Commitment Letter Letters pursuant to their respective terms (except for amendments not prohibited by Section 6.11(a)) until the transactions contemplated by this Agreement, including the Merger, are consummated, (ii) negotiate and negotiate a enter into definitive agreement agreements with respect to the Commitment Letter Financing on the terms and conditions set forth (including any "market flex" and/or "securities demand" provisions applicable thereto) contained in the Commitment Letter Letters ("Definitive Agreements") or on other terms not materially less favorablefavorable to Parent, in the aggregate, to the Purchasers, taken as a whole than the terms and conditions (including any "market flex" and/or "securities demand" provisions applicable thereto) contained in the respective Commitment Letter), (ii) not amend or modify the terms of the Commitment Letter in any manner that would reasonably be expected to adversely impact the ability of the Purchasers to consummate the Transaction prior to the Outside DateLetters, (iii) ensure the accuracy of all representations and warranties of the Purchasers in the Commitment Letter, (iv) comply with all covenants and agreements of the Purchasers in the Commitment Letter and (v) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to the Purchasers set forth funding in the Commitment Letter Letters applicable to either Parent or Merger Sub that are within their controlcontrol and consummate the Financing at or prior to the Closing in accordance with the terms and conditions of the Commitment Letters at or prior to the Closing and otherwise comply with its obligations thereunder, and (iv) enforce their rights under the Commitment Letters in a timely and diligent manner in the event of a breach or other failure to fund the Financing required to consummate the transactions contemplated by this Agreement, including the Merger, on the Closing Date by the Financing Sources; provided, however, that Parent shall not be required to take any enforcement action unless all conditions precedent set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that, by their nature, are to be satisfied at or immediately prior to the Closing, but which are then capable of being satisfied) and the Company stands ready, willing and able to consummate the Merger and the transactions contemplated hereby.
(bc) During Without limiting the period commencing generality of the foregoing, each of Parent and Merger Sub shall give the Company prompt notice: (i) of any 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 breach or default) by any party to the Commitment Letters or any Definitive Agreement of which they become aware; (ii) of the receipt of any written notice or other written communication from any Financing Source with respect to any actual or threatened breach, default, termination or repudiation by any party to the Commitment Letters or any Definitive Agreement or any provisions of the Commitment Letters or any Definitive Agreement that would result in the Financing not being available or that would or would reasonably be expected to prevent, delay or impede the Closing; and (iii) if for any reason either Parent or Merger Sub believes in good faith that there is any material possibility that they will not be able to obtain all or any portion of the Financing necessary to fund the Required Payments on the terms, in the manner, or from the sources contemplated by the Commitment Letters or the Definitive Agreements. At the written request of the Company, Parent shall inform the Company in reasonable detail of the status of its efforts to arrange the Debt Financing or Preferred Financing.
(d) In the event any portion of the Debt Financing or Preferred Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter or Preferred Commitment Letter, each of Parent and Merger Sub shall use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain alternative financing from the same or alternative sources (i) on terms and conditions not materially less favorable to Parent than those contemplated in the Debt Commitment Letter or Preferred Commitment Letter (and with respect to any replacement of the Debt Financing, with conditions to the funding of such alternative financing not more onerous, when taken as a whole, than those conditions and terms contained in the Debt Commitment Letter as of the date of this Agreement and ending on the earlier of (iAgreement) the termination of this Agreement and (ii) in an amount sufficient (when taken together with the Equity Financing and the available portion of the Debt Financing and Preferred Financing) to consummate the transactions contemplated by this Agreement and to pay related fees and expenses (such alternative financing, the "Alternative Financing"); provided that, Parent shall have no obligation to pay any fees in excess of what it was obligated to pay under the original Debt Commitment Letter or Preferred Commitment Letter (taking into account any "market flex" and/or "securities demand" provisions applicable thereto) nor obtain Debt Financing or Preferred Financing on terms materially worse than the terms contained in the original Debt Commitment Letter or Preferred Commitment Letter (including any "market flex" and/or "securities demand" provisions applicable thereto). Parent shall promptly deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing necessary to fund the Required Payments.
(e) Prior to the Closing, the Sellers agree (subject Company shall use reasonable best efforts to, shall cause each of its Subsidiaries to Section 5.5(a)) use reasonable best efforts to, and shall use their commercially reasonable best efforts to cause its and their respective representatives, including legal and accounting advisors, Representatives to provide the Purchasers with such all cooperation reasonably requested by Parent in connection with the Purchasers’ arrangement of the Debt Financing (for the purposes of this Section 6.11(e), the term "Debt Financing" shall be deemed to include customary high-yield non-convertible debt securities offering to be issued or incurred in lieu of all or a portion of any bridge facility contemplated by the Debt Commitment Letter or pursuant to any "market flex" or "securities demand" provisions of the fee letter associated with the Debt Commitment Letter), which reasonable best efforts shall include:
(i) preparing and furnishing to Parent and Merger Sub as promptly as reasonably practicable all Required Information;
(ii) using reasonable best efforts to prepare and furnish to Parent (and, in the case of any required pro forma financial statements, reasonably cooperating with Parent with respect to its preparation of pro forma financial statements) all other financial and pertinent information as may be reasonably requested by either Parent or the PurchasersDebt Financing Sources and their respective agents to prepare (A) customary bank information memoranda, lender presentations, offering memoranda and private placement memoranda (including under Rule 144A under the Securities Act) and (iB) assisting materials for rating agency presentations in connection with such Debt Financing, in each case to the preparation forextent such information relates to the business, financial performance or financial condition of the Company and its Subsidiaries;
(iii) providing customary authorization and/or management representation letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders or holders;
(iv) participating in, (including by making members of senior management with appropriate seniority and expertise available to participate) in a reasonable number of meetings, due diligence sessions, presentations, "road shows", drafting sessions and sessions with the rating agencies in connection with the Debt Financing upon reasonable advance notice and during normal business hours;
(v) reasonably cooperating with the Debt Financing Sources' and their respective agents' customary due diligence sessions and similar presentations marketing efforts, including access to documentation reasonably requested by Persons in connection with capital markets transactions;
(vi) furnishing Parent and the Debt Financing Sources promptly, and in any event no later than three (3) business days prior to Closing, with all required documentation and information under applicable "know your customer" and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, that any lender, provider or arranger of the Debt Financing has reasonably requested at least ten (10) days prior to the Closing Date in connection with the Debt Financing;
(vii) assisting Parent and Merger Sub in obtaining corporate and facilities ratings from any rating agencies and in connection with the parties acting as lead arrangers or agents for, and prospective purchasers and lenders of, the Debt Financing, ;
(iiviii) assisting with the preparation execution and delivery as of materials for rating agency presentations, offering (but not before and not to be effective until) the Closing any pledge and security documents, information memoranda other definitive financing documents, or other related certificates or documents as may be reasonably requested by Parent or Merger Sub (including a certificate of the delivery chief financial officer of one or more customary representation letters), the Company with respect to due diligence items related to the offering memorandum and similar documents required solvency matters in the form set forth as an annex to the Debt Commitment Letter and Preferred Commitment Letter) and otherwise facilitating the pledging of collateral (including cooperation in connection with the pay-off of existing indebtedness to the extent contemplated by this Agreement and the release of related Liens and termination of security interests (including delivering prepayment or termination notices as required by the terms of any existing indebtedness and delivering termination agreements and/or UCC-3 or equivalent financing statements or notices); and
(ix) requesting its and/or its Subsidiaries' independent auditors to cooperate with the Debt Financing, (iii) including by using commercially reasonable efforts to obtain consents of accountants for use of their reports in any materials relating provide "customary" comfort letters (including as to the Financing, (iv"customary" negative assurances) furnishing the Purchasers and their sources of Financing with financial statements, financial data and other due diligence information of the Sellers (other than, prior to the date upon which a Commitment Letter is executed, any of the information listed on Schedule 5.14(b) of the Disclosure Letter), in each case prepared by Sellers in the ordinary course of business; provided, however, that the Sellers shall only be obligated to furnish such information to sources of Financing who have executed a confidentiality agreement with the Sellers in a form and in substance reasonably satisfactory to the Sellers, and (v) facilitating the pledging of collateral and using commercially reasonable efforts to obtain surveys and title insurance as reasonably requested by Purchasers in order to facilitate the Financing; provided, however, that in no event shall the Sellers be required to (A) cooperate in such a manner as would unreasonably interfere with the business or operations of the Spheris Entities, (B) agree to pay any fees, reimburse any expenses or give any indemnities, (C) authorize, approve, adopt, execute or deliver any financing or credit agreement or any other document or instrument in connection therewith; provided that Sellers will use commercially reasonable efforts to cause any officers or other employees that will be employees of a Purchaser upon consummation of the Closing to execute documents reasonably requested by the Purchasers in connection with the Debt Financing so long as and facilitating direct contact with such execution is made independent auditors for participation in such officer or employee’s capacity as an officer or employee a reasonable number of the applicable Purchaser, (D) terminate, or take any action to terminate the Financing Agreement, (E) take any action that would require the Sellers to pay any material out-of-pocket expenses or (F) enter into any agreement or commitment. Purchasers shall (i) reimburse Sellers for due diligence sessions and other meetings upon reasonable out-of-pocket costs incurred by Sellers to comply with this Section 5.14 advance notice and (ii) indemnify Sellers for any loss resulting from Sellers’ compliance with this Section 5.14during normal business hours.
(c) Purchasers shall keep the Sellers informed with respect to all material activity concerning the status of the Financing, including any termination of a Commitment Letter or failure to satisfy any condition to financing thereunder.
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