Financing Efforts. (a) During the Interim Period, Oryx shall use its commercially reasonable efforts to take (or cause to be taken), all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms described in the Debt Commitment Letter, including using commercially reasonable efforts to: (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior to the Closing Date; and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement). (b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailable, Oryx shall give Plains Parent prompt written notice thereof (and in any event within two Business Days) and shall use its commercially reasonable efforts to arrange and to obtain a Substitute Debt Financing as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly (and in any event within two Business Days) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis.
Appears in 2 contracts
Samples: Merger Agreement (Plains Gp Holdings Lp), Merger Agreement (Plains All American Pipeline Lp)
Financing Efforts. (a) During the Interim Period, Oryx The Industrea Parties shall use its commercially reasonable best efforts to take (take, or cause to be taken), all actions and do (do, or cause to be done), all things necessary, proper necessary or advisable to maintain in effect, arrange the Debt Financing as promptly as practicable following the date hereof and to consummate the Debt Financing on or before the Closing Date on Date. Such actions shall include, but not be limited to, the terms described in the Debt Commitment Letter, including using commercially reasonable efforts tofollowing: (i) satisfy, or cause maintaining in effect the Debt Commitment Letters; (ii) causing the Argand Equity Investment to be consummated upon satisfaction of, or obtain a waiver of, of the Financing Conditions contained in the Argand Subscription Agreement; (iii) satisfying on a timely basis all conditions applicable to Oryx under Financing Conditions; (iv) negotiating, executing and delivering definitive agreements and other documentation (“Debt Financing Documents”) that reflect the terms contained in the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter Letters (including any “market flex” provisions related thereto); (v) enforcing its rights under the Debt Commitment Letters in the event of a Financing Failure Event and (vi) in the event that the conditions set forth in Sections 9.1 and 9.2 and the Financing Conditions have been satisfied or, upon funding would be satisfied, cause the financing providers to fund the full amount of the Fee Letter) on Financing. Industrea shall give the Company prompt notice of any breach, repudiation, or prior threatened or anticipated breach or repudiation, by any party to the Closing Date; and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any a Debt Commitment Letter without of which Industrea or its Affiliates becomes aware. Without limiting the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s Industrea Parties’ other obligations under this Agreement Section 7.4, if a Financing Failure Event occurs the Industrea Parties shall (x) promptly notify the Company of such Financing Failure Event and the reasons therefor, (y) in consultation with the Company, obtain alternative financing from alternative financing sources, in an amount sufficient to make the Closing Date Payments and consummate the transactions contemplated hereby by this Agreement, as promptly as practicable following the occurrence of such event, and (including z) obtain, and when obtained, provide the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy Company with a copy of, a new financing commitment, subject only to the Financing Conditions, that provides for such alternative financing. Neither Industrea nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace the a Debt Commitment Letter or Fee Letter any Debt Financing Document except for (a) substitutions and replacements pursuant to the immediately preceding sentence; or (b) if such amendment, modification, waiver supplement, restatement, assignment, substitution or replacement (i) does not contain additional conditions, modified conditions or other contingencies, in each case to the funding of the debt financing relative to those contained in Debt Commitment Letters for the debt financing as in effect on the date of this Agreement, (ii) or is otherwise not reasonably likely to (x) reduces impair or materially delay the funding of the Debt Financing or (y) impair or materially delay the Closing and (iii) does not reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof of this Agreement; provided, that, notwithstanding the foregoing, it is hereby understood and agreed that the Industrea Parties may amend the economic or other arrangements among the existing and additional either Debt Commitment Letter to (A) add lenders, lead arrangers, bookrunners, syndication agents or similar entitiesentities who had not executed such Debt Commitment Letter as of the date hereof and provide such lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect to replace existing conditions to the commitment parties with new commitment parties if consummation of the addition of financings contemplated by such additional parties does not reduce Debt Commitment Letter to the extent that the commitments in the aggregate net amount of the lenders to be funded provide the financings contemplated by such Debt Commitment Letter are not reduced as a result of any such amendment and (B) implement any “market flex” provisions contained in a Debt Commitment Letter. Upon any such amendment, supplement, modification or replacement of a Debt Commitment Letter or Debt Financing Document in accordance with this Section 7.4(a), the term “Debt Commitment Letter” shall include such “Debt Commitment Letter” as so amended, supplemented, modified or replaced. Upon the request of the Company, Industrea will confirm (a) with its Financing Sources their intent and ability to perform, and the availability of the Debt Financing, under the Debt Commitment Letter at the Closing as compared Letters, subject only to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, satisfaction or waiver or replacement of the Debt Commitment LetterFinancing Conditions, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in that neither it nor its Financing Sources are aware of any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to result in the failure of a Financing Condition. “Financing Failure Event” shall mean any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt following (A) the commitments with respect to all or any portion of the Financing expiring or being terminated, (B) for any reason, all or any portion of the Financing becoming unavailable, (C) a breach or repudiation, or threatened or anticipated breach or repudiation, by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the a Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (BD) dispute it becoming reasonably foreseeable that any of the events set forth in clauses (A) through (C) shall occur, or disagreement between or among (E) any parties party to the a Debt Commitment Letter or Fee Letter any Affiliate or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event agent of such Person shall allege that any portion of the Debt Financing becomes unavailable, Oryx shall give Plains Parent prompt written notice thereof events set forth in clauses (and in any event within two Business DaysA) and shall use its commercially reasonable efforts to arrange and to obtain a Substitute Debt Financing as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly through (and in any event within two Business DaysC) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandishas occurred.
Appears in 2 contracts
Samples: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
Financing Efforts. (a) During the Interim PeriodEach of Buyer and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially 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 maintain in effect, arrange and consummate obtain the Debt Financing on or before contemplated by the Closing Date on the terms described in the Debt Commitment LetterLetters, including using commercially reasonable best efforts to: to (i) maintain in effect the Commitment Letters, (ii) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis taking into account the expected timing of the Marketing Period and the Outside Date, all conditions applicable to Oryx under Buyer and Merger Sub that are within its control to obtaining the Financing set forth therein (including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing), (iii) enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained in the Commitment Letters or on terms no less favorable to Buyer (as determined in the good faith judgment of Buyer), and (iv) consummate the Financing at or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to , but in no event later than the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter Outside Date (including any “market flex” provisions of using its reasonable best efforts to cause the Fee Letter) on or prior Lenders and other Persons providing Financing to the Closing Date; and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and herebyprovide such financing). Oryx Buyer shall not, without the prior written consent of Plains Parentthe Company, permit any amendment amend, modify or modification to be made to, consent to any waiver of any provision or remedy of, or replace supplement (including in the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement definitive documents) (x) reduces the aggregate amount any of the Debt Financing (including by changing the amount of fees conditions or contingencies to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described contained in the foregoing clause (x) Commitment Letters, or (y) and would otherwise be reasonably likely to make the funding any other provision of the Debt Financing less likely to occur. If all conditions Commitment Letters, in either case to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of extent such amendment, modification, waiver modification or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, supplement could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent have the funding effect of the Debt Financing by any party to the Debt Financing of which Oryx becomes aware, and (ii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual adversely affecting the ability of Buyer or threatened defaultMerger Sub to timely consummate the transactions contemplated hereby, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute amending, modifying or disagreement between supplementing the conditions or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailable, Oryx shall give Plains Parent prompt written notice thereof (and in any event within two Business Days) and shall use its commercially reasonable efforts to arrange and to obtain a Substitute Debt Financing as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly (and in any event within two Business Days) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis.contingencies to
Appears in 1 contract
Financing Efforts. (a) During the Interim Period, Oryx The Evolent Entities shall use its commercially reasonable best efforts to take (take, and shall cause their Affiliates and Representatives to take, or cause to be taken), all reasonable actions and do (to do, or cause to be done), all things necessary, proper reasonably necessary or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before the at Closing Date on the terms and conditions described in the Debt Commitment Letter, including using commercially reasonable best efforts to: (i) satisfyto maintain in effect the Commitment Letter until the consummation of the Closing and the other transactions contemplated hereby and to comply with their obligations, or cause including the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on at or prior to the Closing Date; of all conditions to the funding of the Debt Financing under the Commitment Letter, (ii) to negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to conditions consistent with those set forth in the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the therein or in any Fee Letter) on or prior to the Closing Date; ), and (iii) to consummate the Debt Financing at or prior to or substantially or, concurrently with with, the Closing. Oryx The Evolent Entities shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of OryxCompany, together with any Substitute Financing Commitments not to be unreasonably withheld, conditioned or equity commitmentsdelayed, would not be sufficient consent to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby or cause (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit a) any amendment or modification to be made to, consent to or any waiver of any provision or remedy ofunder, or replace the Debt Commitment Letter or Fee Letter if such amendment, modificationmodification or waiver (i) imposes new or additional conditions, waiver or replacement otherwise expands any of the conditions, to the receipt of the Debt Financing in a manner that would reasonably be expected to delay or prevent the Closing, or (xii) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees committed to be paid or original issue discount thereof) funded at Closing below the amount necessary Required Amounts or (iii) permits or effects any assignment, release or termination of the Commitment Letter or of the obligations of any counterparty thereto (provided, that nothing herein shall foreclose the Financing Sources party to effectuate the Oryx Refinancing and pay all Commitment Letter from making assignments to their respective Affiliates in accordance with the terms hereof), (b) any other amounts pursuant amendment, modification to, or any waiver of any provision under, the Commitment Letter that would reasonably be expected to this Agreement and adversely affect the other Transaction Documents or otherwise necessary ability of the Evolent Entities to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to by this Agreement and the other Transaction Documents, (y) imposes any new or additional condition prior to the Debt FinancingTermination Date (provided, or otherwise amendsthat, modifies or expands so long as any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that such event is not described in the foregoing clause otherwise prohibited by this sentence, (x) the Evolent Entities may replace or (y) and would otherwise be reasonably likely to make amend the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace entities that have not executed the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof, in each case to the extent contemplated by the Commitment Letter and (y) the exercise of any unredacted “flex” or similar phrasing to provisions in any Fee Letter will not be deemed a reference to the date of such an amendment, modificationmodification or waiver under the Commitment Letter under this Section 4.9), (c) any other amendment, modification to, or any waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any eventprovision under, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) the Commitment Letter that would reasonably be expected materially delay, impede or prevent to (i) make the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailable(or satisfaction of the conditions to obtaining any portion of the Debt Financing) less likely to occur, Oryx shall give Plains Parent prompt written notice thereof (ii) adversely impact the ability of the Evolent Entities to enforce its rights against the other parties to the Commitment Letter or the definitive agreements with respect thereto in any material respect, or (iii) delay or prevent the funding of any portion of the Debt Financing at the Closing, or (d) any early termination of the Commitment Letter unless it is replaced with a new commitment that, were it structured as an amendment to the existing Commitment Letter, would satisfy the requirements of this Section (the foregoing clauses (a) through (d), collectively, an “Adverse Effect on Financing”). The Evolent Entities shall, upon reasonable request of the Company, keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to obtain and finalize the Debt Financing.
(b) The Evolent Entities shall promptly (and, in any event event, within two (2) Business Days) and notify the Company in writing of the occurrence of any Financing Notice Event. Without limiting its other obligations under this Section 4.9, if a Financing Failure Event occurs, the Evolent Entities shall (i) use its commercially reasonable best efforts to arrange and to obtain a Substitute Debt Financing to, as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly Financing Failure Event, take, and cause their Affiliates and Representatives to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable (and in each case, on a reasonable best efforts basis) to obtain alternative debt financing (the “Alternative Financing”) in any event within two Business Days) amount necessary to Plains Parent true, accurate and complete copies of all agreements (provided that replace any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion unavailable portions of the Debt Financing from the same or other sources and which do not include terms and conditions to the consummation of such Alternative Financing that are materially less favorable (taken as a whole) to the Evolent Entities than the terms and conditions set forth in the Commitment Letter (including the “Substitute Financing Commitments”). The terms flex” provisions of Sections 5.17(a) and 5.17(bany Fee Letters), and (ii) promptly provide the Company with a true and complete copy of a new financing commitment in respect of such Alternative Financing; provided, however, that in no event shall any such Alternative Financing, without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), have an Adverse Effect on Financing. Upon any permitted amendment, supplement, modification or replacement of the Commitment Letter (including with respect to any Alternative Financing) in accordance with clause (a) or (b) of this Section 4.9, the Debt Financing and the Debt term “Commitment Letter” shall mean the Commitment Letter as so amended, supplemented, modified or replaced, and references to “Debt Financing” shall apply to include the Substitute Debt Financing and financing contemplated by the Substitute Financing CommitmentsCommitment Letter as so amended, mutatis mutandissupplemented, modified or replaced.
Appears in 1 contract
Financing Efforts. (a) During the Interim Period, Oryx Parent shall use its commercially reasonable best efforts to take (take, or cause to be taken), all actions actions, and do (to do, or cause to be done), all things necessary, proper or advisable necessary to maintain in effect, arrange and consummate the Debt Financing or any Substitute Financing on or before the Closing Date on terms, and subject to the terms described conditions, set forth in the Debt Commitment Letter, including using commercially its reasonable best efforts to: to (i) satisfycomply with and maintain in effect the Commitment Letter, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to conditions contained in the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of or with conditions no less favorable to Parent than the Fee conditions set forth in the Commitment Letter) on or prior to the Closing Date; and ), (iii) consummate satisfy on a timely basis all the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 Financing and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or definitive agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) related thereto and (ziv) above, nothing herein shall prevent Oryx from replacing not take or amending the Debt Commitment Letter in order fail to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of take any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) action that would reasonably be expected materially delay, impede to prevent or prevent delay the funding availability of the Debt Financing on the terms and conditions contemplated by the Commitment Letter. Parent shall, after obtaining Knowledge thereof, give the Company prompt written notice of any (A) material breach or default by a Financing Party or any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute withdrawal, repudiation or disagreement between or among any parties to termination of the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to Financing by the Debt Financing to fail to be satisfied or funded on or prior to the Closing DateParties. In the event that any portion all conditions to the Commitment Letter have been satisfied (other than the consummation of the Debt Merger), Parent shall use its reasonable best efforts to cause the Financing becomes unavailableParties to fund the amount of the Financing at or prior to the Closing, Oryx to the extent the proceeds thereof are required to consummate the Closing, the Merger and the other transactions contemplated by this Agreement. In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Commitment Letter permitted pursuant to this Section 7.07, such new commitment letters will be deemed to be a part of the “Financing” and deemed to be the “Commitment Letter” for all purposes of this Agreement. Parent shall give Plains Parent prompt written notice thereof promptly (and in any event within two one Business DaysDay after its receipt thereof) deliver to the Company copies of any termination, amendment, modification, waiver or replacement of the Commitment Letter or any fee letters. Parent will not amend, modify, waive or replace the Commitment Letter in a manner that adds material conditions precedent to the funding of the Financing on the Closing Date or that could otherwise reasonably be expected to impair, delay or prevent the availability of all or a part of the Financing in any material respect, without the Seller’s prior written consent (it being understood and agreed that, in any event, Parent may amend the Commitment Letter to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Commitment Letter as of the date of this Agreement).
(b) If funds in the amounts set forth in the Commitment Letter, or any portion thereof, become unavailable to Parent, or it becomes reasonably likely that such funds may become unavailable to Parent on the terms and conditions contemplated by the Commitment Letter, Parent shall use its commercially reasonable efforts to arrange and to obtain a Substitute Debt Financing as promptly as practicable following the occurrence of such event. Oryx shall event (x) notify the Company in writing thereof, (y) use reasonable best efforts to obtain substitute financing sufficient to enable Parent to consummate the Closing and the Merger and the other transactions contemplated by this Agreement (the “Substitute Financing”) and (z) use reasonable best efforts to obtain a new financing commitment letter that provides for such Substitute Financing (on comparable or more favorable terms to Parent (as determined in the reasonable judgment of Parent) than those set forth in the Commitment Letter) and, promptly after execution thereof, deliver promptly (and in any event within two Business Days) to Plains Parent true, accurate the Company true and complete copies of all agreements the new commitment letter and the related fee letters (provided that any fee letter will be in redacted in a customary manner) pursuant form reasonably satisfactory to which any the Persons providing such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(aFinancing) and 5.17(b), related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing will be deemed to be a part of the Debt “Financing” and any commitment letter for such Substitute Financing and shall be deemed the Debt “Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis” for all purposes of this Agreement.
Appears in 1 contract
Financing Efforts. (a) During the Interim PeriodEach of Parent and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially 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 maintain in effect, arrange and consummate obtain the Debt Financing on or before the Closing Date as soon as reasonably practicable on the terms described and conditions contained in the Debt Commitment LetterFinancing Commitments (reflecting flex provisions to the extent exercised) and to consummate the Rollover Investment pursuant to the Rollover Letters in accordance with the terms thereof, including using commercially its reasonable best efforts to: to (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx comply with its obligations under the Debt Commitment Letter on or prior to Financing Commitments and the Closing Date; Rollover Letters, (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing Commitments on the terms and subject conditions (reflecting flex provisions to the extent exercised) no less favorable to Parent and Merger Sub than those contained in the respective Financing Commitments or on terms and conditions contemplated otherwise acceptable to Parent that would not (A) reduce the aggregate amount of the Financing unless the Rollover Investment is increased by a corresponding amount or (B) impose new or additional conditions precedent to, or delay, the Debt Commitment Letter receipt of the Financing, (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub contained in the Financing Commitments (including definitive agreements related thereto) and the Rollover Letters, including the payment of any “market flex” provisions of commitment, engagement or placement fees required as a condition to the Fee LetterFinancing, and (iv) on consummate the Financing and the Rollover Investment at or prior to the Closing Date; and Date (iii) consummate the Debt Financing at or prior it being understood that it is not a condition to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations Closing under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall notAgreement, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition nor to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions Merger, for Parent or (z) is of a type that is not described Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing). Notwithstanding anything to the contrary in the foregoing clause (x) or (y) immediately preceding sentence, each of Parent and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx Merger Sub shall, upon execution and shall cause each of any amendmentits Affiliates to, modification, waiver or replacement of the Debt Commitment Letter, provide the same take all actions reasonably necessary to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default maintain in effect each Financing Commitment and each Rollover Letter (it being understood that the Financing Commitments and the Rollover Letters may be replaced or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breachamended as provided below) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx becomes aware, and (ii) enforce all of its rights under each Financing Commitment (or any definitive agreements relating thereto) and each Rollover Letter. Parent shall keep the Company reasonably informed of the receipt status of any written notice or its efforts to arrange the Financing (including providing the Company with copies of material draft and definitive agreements and other written communication from any Person with respect to any (A) actual or threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document material documents related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailable, Oryx shall give Plains Parent prompt written notice thereof (and in any event within two Business DaysFinancing) and shall use its commercially reasonable efforts to arrange and to obtain a Substitute Debt Financing as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly (and in any event within two Business Days) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis.Rollover
Appears in 1 contract
Financing Efforts. (a) During Buyer acknowledges and agrees that Sellers and their Affiliates and their respective Representatives shall not have any responsibility for, or incur any liability to any Debt Financing Sources under the Interim PeriodDebt Financing or any cooperation provided pursuant to this Agreement and that Buyer shall indemnify and hold harmless Sellers and their Affiliates and their respective Representatives from and against any and all Losses suffered or incurred by any of them resulting from or arising out of any Action by or on behalf of any Debt Financing Source in connection with the Debt Financing and any information utilized in connection therewith (except, Oryx as set forth in the last sentence of Section 6.4(e), to the extent such Losses were caused by the gross negligence, fraud or intentional misconduct of Sellers or their Affiliates or by breach of this Agreement by Sellers).
(b) Buyer shall use commercially reasonable efforts to deliver to Sellers no later than 5:00 p.m., Mountain Standard Time, December 29, 2017, a true and complete copy of the debt commitment letter(s) (the “Debt Commitment Letter”) fully executed by Lenders pursuant to which financing in the aggregate amount of at least $19 million will be provided for the Transactions (the “Debt Financing”). Buyer shall fully pay (or cause to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the Closing in connection with the transactions contemplated by the Debt Commitment Letter. From the date of delivery in accordance with this Section 6.4(b) through the Closing Date, Buyer will not amend or modify the Debt Commitment Letter in any manner.
(c) Buyer shall use its commercially reasonable efforts to take (take, or cause to be taken), all actions and do (to do, or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate obtain the proceeds of the Debt Financing on or before or, if applicable, the Closing Date on the terms described in the Debt Commitment LetterAlternative Financing, including using its commercially reasonable efforts to: (i) enter into definitive agreements with respect to the Debt Financing or, if applicable, the Alternative Financing, (ii) satisfy, or cause the satisfaction of, or obtain a waiver ofBuyer’s Representatives to satisfy, on a timely basis all conditions applicable to Oryx under to, and within the Debt Commitment Letter on control of, Buyer or prior to Buyer’s Representatives in such definitive agreements, and (iii) in the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect event that all conditions to the Debt Financing on the terms and subject to the conditions contemplated by set forth in this Agreement are satisfied, cause the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior Financing Sources to the Closing Date; and (iii) consummate fund the Debt Financing or, if applicable, the Alternative Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(bd) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailableor is reasonably expected to become unavailable in the manner or from the Debt Financing Sources, Oryx (i) Buyer shall give Plains Parent prompt written notice thereof promptly so notify Sellers’ Representative, (and in any event within two Business Daysii) and Buyer shall use its commercially reasonable efforts to arrange and obtain, and to obtain a Substitute negotiate and enter into definitive agreements with respect to, alternative financing prior to the Closing Date (or, if earlier, the End Date) on terms not materially less beneficial to Buyer as provided under the Debt Financing Commitment Letter from financial institutions in an amount sufficient to consummate the Transactions (the “Alternative Financing”), as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly (and in any event within two Business Days) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis.and
Appears in 1 contract
Financing Efforts. (a) During Prior to the Interim PeriodClosing, Oryx Purchaser shall comply with the following:
(i) Subject to the terms, conditions and limitations in this Agreement, Purchaser shall use its commercially reasonable best efforts to take (take, or cause to be taken), all actions and do (to do, or cause to be done), all things reasonably necessary, proper or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before the Closing Date on the terms described in the Debt Commitment LetterLetter on the terms and conditions (including flex provisions) set forth therein, including using commercially its reasonable best efforts to: (iA) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under maintain in effect the Debt Commitment Letter on or prior (and any Debt Financing Agreements entered into in connection therewith) until the consummation of the transactions (including the Closing) contemplated hereby, (B) to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Commitment Letter (collectively, the “Debt Financing Agreements”) on the terms and subject to conditions (including the conditions contemplated by flex provisions) contained in the Debt Commitment Letter and related Fee Letter (including or on such other terms acceptable to Purchaser and the Committed Lenders so long as such other terms or conditions (x) do not contain any “market flex” provisions conditions precedent to the consummation of the Fee Letter) on or prior Debt Financing less favorable to Purchaser than the Closing Date; Debt Financing Conditions and (iiiy) would not reasonably be expected to materially and adversely impact the ability of Purchaser to timely consummate the Debt Financing at or prior the Closing), (C) to or substantially concurrently with Closing. Oryx shall not terminate satisfy on a timely basis all of the Debt Financing Conditions and any other conditions to funding of the Debt Financing in the Debt Commitment Letter and such Debt Financing Agreements, (D) subject to satisfaction of the Debt Financing Conditions, to consummate the Debt Financing no later than the date on which the Closing is required to occur pursuant to Section 8.1 and (E) to enforce its rights under or with respect to the Debt Commitment Letter and the Debt Financing Agreements, including seeking to cause the Committed Lenders to fulfill their obligations under the Debt Commitment Letter and such Debt Financing Agreements in the event of a breach thereof by the Committed Lenders thereunder; provided, that Purchaser shall not be required to bring any suit or claim against the Committed Lenders. Purchaser shall consult with and keep TDCC informed in reasonable detail of the status of its efforts to consummate the Debt Financing. Purchaser shall not enter into any Debt Financing Agreement without TDCC’s prior written consent (which TDCC may withhold, delay or condition in its sole discretion).
(ii) Without the prior written consent of the Plains Parties if the available cash on hand of OryxTDCC, together with any Substitute Financing Commitments or equity commitments, would Purchaser shall not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to or any waiver of any provision or remedy ofunder, or replace the replace, any Debt Commitment Letter or Fee Letter any Debt Financing Agreement if such amendment, modification, waiver or replacement would reasonably be expected to (xA) reduces delay or prevent the aggregate Closing Date, (B) modify the Debt Financing Conditions or create any new condition to the Debt Financing (other than the Debt Financing Conditions) if such modification or creation would reasonably be expected to delay or prevent the Closing Date or make the funding of the entire amount of the Debt Financing (including by changing or the amount satisfaction of fees the conditions to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to obtaining the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions occur or (C) adversely impact the ability of Purchaser to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking enforce its rights under the against other parties to any Debt Commitment Letter up or any Debt Financing Agreement prior to but excluding the initiation Closing. Without the prior written consent of TDCC, Purchaser shall not permit any assignment of rights or obligations under any Debt Commitment Letter. Purchaser shall promptly provide TDCC written notice of any Proceedings against the Financing Sources). For the avoidance of doubtsuch amendment, subject modification or assignment relating to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the a Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the any Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties Financing Agreement that does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared require consent pursuant to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution provisions of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced this clause (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacementii).
(biii) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing contemplated by the Debt Commitment Letter becomes unavailableunavailable on the terms and conditions contemplated (including flex provisions) in the Debt Commitment Letter or on other terms acceptable to Purchaser, Oryx Purchaser shall give Plains Parent prompt written notice thereof (A) promptly notify TDCC thereof, and (B) unless such actions would cause a breach of its obligations under the Debt Commitment Letter, use its reasonable best efforts to promptly arrange and obtain any such portion from alternative sources (the “Alternative Financing”) on terms not less favorable to Purchaser than those in the Debt Commitment Letter (taking into account flex provisions). Purchaser shall promptly provide a true, correct and complete copy of any event within two Business DaysAlternative Financing commitment (together with a copy of any related fee letter with only the fee amount redacted) to TDCC, and, to the extent applicable, thereafter (x) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by such commitment letters (including fee letters) for the Alternative Financing, (y) any reference in this Agreement to the “Debt Commitment Letter” or the “Committed Lenders” shall be deemed to be the commitment letters (including fee letters) for the Alternative Financing and the lenders or other providers of such Alternative Financing, respectively, and (z) any reference in this Agreement to the Debt Financing Conditions shall include the conditions to the Alternative Financing set forth in the commitment letters (including fee letters) for the Alternative Financing referred to in the prior clause (y).
(i) Prior to the Closing, TDCC shall use reasonable best efforts to provide to Purchaser, and TDCC shall cause each of its Affiliates and AgroFresh to use its reasonable best efforts to provide, and shall use its commercially reasonable best efforts to arrange cause its Representatives, including legal and accounting (in each case, with appropriate seniority and expertise), to obtain a Substitute provide such cooperation as reasonably requested by Purchaser that is customary in connection with arranging and obtaining the Debt Financing as promptly as practicable contemplated by the Debt Commitment. Notwithstanding the foregoing, nothing in this clause (i) shall require TDCC, AgroFresh or any of their respective Affiliates to (A) provide any cooperation to the extent it would interfere unreasonably with the business or operations of TDCC, AgroFresh or any of their respective Affiliates, (B) pay any commitment or similar fee in connection with such financing, (C) enter into any agreement, document or instrument in connection with such financing, (D) provide any cooperation, or take any action, that, in the reasonable judgment of TDCC, could cause TDCC, AgroFresh or any of their respective Affiliates to incur any actual or potential liability, (E) provide any cooperation, or take any action, that, in the reasonable judgment of TDCC, would result in a violation of any confidentiality arrangement or material agreement or the loss of any attorney-client or other similar privilege, (F) make any representation or warranty in connection with such debt financing or the marketing or arrangement thereof, (G) prepare or deliver any financial statements or other financial information other than any such financial statements or other financial information to the extent required to be delivered by TDCC under Section 5.17(e), (H) provide any cooperation, or take any action, that would cause any representation or warranty in this Agreement to be breached or any condition to Closing set forth in this Agreement to fail to be satisfied, or (I) provide any cooperation, or take any action, following the occurrence of such eventClosing. Oryx The parties hereto acknowledge and agree that the condition set forth in Section 7.2(b), as it applies to TDCC’s obligations under this clause (i) shall deliver promptly be deemed satisfied unless TDCC knowingly and intentionally materially breaches its obligations under this clause (i).
(ii) Purchaser shall indemnify and in any event within two Business Days) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources hold harmless each of the Substitute Debt Financing shall have committed TDCC Indemnified Parties from and against any and all Losses suffered or incurred by any of them to provide any portion Committed Lender in connection with any of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), their cooperation or assistance with respect to the Debt Financing and or the provision of any information utilized in connection therewith or otherwise arising from the Debt Commitment LetterFinancing. Purchaser shall from time to time, shall apply promptly upon request by TDCC, reimburse TDCC and its Affiliates and each of their respective officers, directors, employees, representatives or agents for any and all reasonable, documented out-of-pocket fees, costs or expenses (including reasonable fees, costs and expenses of counsel, accountants and other advisors) incurred by any of them in connection with any of their cooperation or assistance with respect to the Substitute Debt Financing or the provision of any information utilized in connection therewith or otherwise arising from the Debt Financing. Purchaser hereby covenants and agrees that all rating agency presentations, bank information memoranda, “bank books”, offering memoranda, private placement memoranda, offering documents, lender presentations or any other marketing or similar documents prepared in connection with the Substitute Debt Financing Commitments, mutatis mutandisshall contain disclosures and disclaimers exculpating TDCC and its Affiliates with respect to any liability related to the contents or use thereof by the recipients thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Boulevard Acquisition Corp.)
Financing Efforts. (a) During the Interim Period, Oryx Buyer shall use its commercially reasonable best efforts to take (or cause the Financing to be taken)available at the Closing, all actions and do including using reasonable best efforts to (or cause to be done), all things necessary, proper or advisable to i) maintain in effecteffect the Equity Commitment Letters, arrange and consummate the Debt Financing on or before the Closing Date on the terms described (ii) maintain in effect the Debt Commitment LetterLetters, including using commercially reasonable efforts to: and (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (iiiii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing (the “Definitive Debt Financing Agreements”) and, if applicable, definitive agreements with respect to the Equity Financing (together with the Definitive Debt Financing Agreements, the “Definitive Agreements”) consistent with the terms contained in the applicable Commitment Letters (iv) satisfy on a timely basis (or if deemed advisable by Buyer, obtain a waiver of) all conditions in the Commitment Letters and the Definitive Debt Financing Agreements, in each case that are within its control, and comply with its obligations thereunder, and (v) at the Closing, subject to the terms and subject to conditions of this Agreement, consummate the conditions Financing as is contemplated by the Debt Commitment Letter (including any “market flex” provisions Letters. Without limiting the foregoing, in the event that all conditions in the Commitment Letters have been satisfied, or upon funding will be satisfied, and all of the Fee Letter) on or prior conditions to the Closing in Sections 7.1, 7.2 and 7.3 have been satisfied or waived by the applicable party hereto, Buyer shall use reasonable best efforts to cause the Financing Entities to provide the Financing on the Closing Date; and .
(iiib) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx Buyer shall not, without the prior written consent of Plains ParentSeller, permit enter into any amendment amendment, replacement, supplement or other modification to be made to, consent to or any waiver of any provision or remedy ofunder, or replace any of the Debt Commitment Letter or Fee Letter Letters if such amendment, modificationreplacement, supplement, modification or waiver (i) adds new (or replacement (xadversely modifies or expands any existing) reduces conditions to the aggregate amount consummation of all or any portion of the Debt Financing as compared to those in the applicable Commitment Letter as in effect on the date of this Agreement or (ii) reduces, or would have the effect of reducing, including by changing increasing the amount of fees to be paid or original issue discount thereof) below issuance discount, the amount necessary of the Financing intended to effectuate be funded at Closing, or (iii) would reasonably be expected to prevent, impede or delay the Oryx Refinancing consummation of the Financing, and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to by this Agreement to be consummated at Closing (it being understood and the agreed that an amendment, replacement, supplement or other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding modification of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order Letters to add investors, lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities which who had not executed the Debt Commitment Letter Letters as of the date hereof and amend of this Agreement would not reasonably be expected to prevent, materially impede or delay the economic consummation of the Financing or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents transactions contemplated by this Agreement or similar entities, or to replace the commitment parties with new commitment parties if availability of the addition of such additional parties does not reduce the aggregate net amount to be funded Financing under the Debt Commitment Letter at the Closing as compared Letters). Buyer shall promptly deliver to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution Seller copies of any amendment, modificationreplacement, supplement, modification or waiver or replacement of the Debt to either Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(bc) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailable, Oryx regardless of the reason therefor, Buyer will promptly use reasonable best efforts to obtain alternative debt financing (in an amount sufficient to consummate the transactions contemplated by this Agreement) from the same or other sources (“Replacement Financing”) on terms and conditions that are at least as favorable to Buyer as those contained in the Debt Commitment Letters and the related fee letters as of the date hereof. For purposes of this Agreement, (A) the term “Debt Commitment Letter” shall give Plains Parent be deemed to include any commitment letter (or similar agreement) with respect to any debt financing arranged in compliance herewith (and any Debt Commitment Letter remaining in effect at the time in question) and (B) the term “Financing Entities” shall be deemed to include any financing sources with respect to any debt financing arranged in compliance herewith and (C) the term “Debt Financing” shall be deemed to include any Replacement Financing and any other financing that is arranged in compliance herewith and replaces or supplements the Debt Financing contemplated by the Debt Commitment Letters as of the date hereof. Buyer shall provide Seller with prompt written notice thereof (i) of any actual or threatened (in writing) breach, default, repudiation or termination by any party to any Debt Commitment Letter that Buyer is aware of or (ii) at any time for any reason Buyer believes in good faith that it will not be able to obtain the Financing on the terms and conditions in the manner or from the sources contemplated by any event within two Business Daysof the Debt Commitment Letters.
(d) Seller shall and shall cause its Affiliates to, and shall use its reasonable best efforts to cause its and their respective representatives to provide all cooperation that is necessary, customary or advisable and requested by Buyer to assist Buyer in arranging, obtaining and syndicating any of the Financing including, without limitation, by (i) making senior management (including Key Employees) of the Company available to participate at reasonable times in a reasonable number of meetings, presentations, road shows and due diligence sessions that are requested a reasonable time period in advance with proposed lenders, underwriters, initial purchasers or placement agents, and in sessions with rating agencies, (ii) providing reasonable and timely assistance to Buyer and the Financing Parties in their preparation of (1) materials for lender presentations, confidential information memoranda (public and non-public), offering memoranda, prospectuses and similar documents customary or required in connection with the Financing and (2) customary pro forma financial statements reflecting the purchase and sale contemplated herein and the Financing (it being understood that nothing in this Section 6.12(d) shall require the Seller to prepare any pro forma financial statements), (iii) as promptly as practicable on an ongoing basis, furnishing Buyer with such financial and other information relating to the Company as is customary or reasonably necessary for the arrangement, syndication and completion of the Financing including the unaudited consolidated balance sheet and consolidated statements of income and cash flows of the Company as of and for each month ended at least 45 days prior to the Closing, (iv) cooperating in and facilitating reasonable due diligence by the Financing Parties (including by providing due diligence materials reasonably requested by the Financing Parties) and taking all actions reasonably necessary (x) to allow the Financing Parties to evaluate the Company’s current assets, properties, inventory, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent reasonable (including cooperating in and facilitating and completion of field examinations, collateral audits, asset appraisals and surveys, in each case, during normal business hours and upon reasonable written request, and providing reasonable access to Buyer and its representatives to all applicable real property) and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the Financing (it being understood that signatures to such agreements shall be held in escrow prior to the Closing, and such agreements shall only be effective after the occurrence of the Closing Date), (v) if requested in writing by Buyer at least eight Business Days prior to the Closing Date, furnish to Buyer and the Financing Parties all information regarding the Company that is requested by Buyer and required in connection with the Financing by regulatory authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, at least five Business Days prior to the Closing Date, (vii) executing and delivering definitive financing documents, including any pledge and security documents, any loan agreements, guarantees, currency or interest hedging agreements, certificates, and other definitive financing documents (it being understood that, in each case, signatures to such agreements shall be held in escrow prior to the Closing and such agreements shall only be effective from and after the occurrence of the Closing), and in each case assisting in the preparation thereof and of applicable schedules and other information necessary in connection therewith, (viii) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing customary representations, and (ix) using reasonable best efforts to facilitate the pledging of collateral (including delivery of stock and other equity certificates of the Company on the Closing Date).
(e) The Seller and its Subsidiaries shall deliver all notices and take other actions required to facilitate the termination of the Company’s commitments, obligations and liabilities under the Parent ABL Facility and the Indentures, and release of any Liens and guarantees in connection therewith on the Closing Date. The Seller shall furnish to the Buyer no later than one (1) Business Day prior to the Closing a termination letter or other definitive agreement (together with all customary or required evidence of lien releases) (the “Payoff Documents”) in substantially final form and in form and substance reasonably satisfactory to Buyer from the applicable agent, trustee or other representative on behalf of all the Persons or financial institutions to which such indebtedness is owed stating that all obligations (including guarantees) in respect thereof and Liens in connection therewith on the assets of the Company and the shares of capital stock of the Company (including the Shares) shall be, substantially concurrently with the Closing, irrevocably released and terminated, or arrangements satisfactory to Buyer for such release shall have been made by such time, and providing for and effecting the release of record of all such Liens substantially concurrently with the Closing.
(f) Notwithstanding any other provision of this Agreement to the contrary, nothing in the foregoing Section 6.12 will require the Seller or any of its Subsidiaries to (i) waive or amend any terms of this Agreement or agree to pay any fees (including any commitment or similar fees) or reimburse any expenses prior to the Closing, (ii) enter into, or have any liability or obligation under, any Definitive Agreement, certificate or other document that is effective prior to the Closing (other than delivery of customary authorization letters in connection with the Financing) or pass resolutions or consents to approve or authorize the execution of the Financing (other than any such resolutions, consents or approvals executed by a Person in their capacity as holder of the office(s) which such Person will hold following the Closing), (iii) take any action that, in the good faith determination of the Seller, would unreasonably interfere with the conduct of the business of the Seller or any of its Subsidiaries, (iv) provide any information the disclosure of which is prohibited or restricted under material applicable Law or that, on the advice of counsel would violate any attorney-client privilege or any confidentiality obligation binding on the Seller or any of its Subsidiaries (provided that in each case the parties will use commercially reasonable efforts to arrange make appropriate substitute disclosure arrangements to the extent possible), (v) be required to give any indemnities in connection with the Financing (except, in the case of the Company, for indemnities in the Definitive Agreements that are effective from and after the Closing), (vi) provide any legal opinion or other opinion of counsel, (vii) take any action that would reasonably be expected to obtain conflict with, result in a Substitute Debt violation of, or result in a breach of or a default under any material Laws applicable to the Seller or any of its Subsidiaries or (viii) take any action that could reasonably be expected to result in personal liability to any officer or other representative of the Seller or any of its Subsidiaries.
(g) Buyer shall, promptly upon request by the Seller, reimburse the Seller for all reasonable and documented out-of-pocket costs (including reasonable and documented attorney’s fees and expenses) incurred by the Seller or any of its Subsidiaries in connection with the cooperation described above in this Section 6.12. Buyer shall indemnify and hold harmless the Seller and its Subsidiaries and their respective 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 (other than information provided by the Seller or any of its Subsidiaries), in each case, except to the extent such liabilities or losses are suffered or incurred directly as promptly as practicable following a result of the occurrence bad faith, gross negligence, or willful misconduct by the Company or any of such event. Oryx shall deliver promptly its Subsidiaries or, in each case, their respective representatives.
(and h) Notwithstanding anything herein or in the Confidentiality Agreement to the contrary, all non-public or other confidential information provided by Seller, the Company or any event within two Business Days) of their respective representatives to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter Buyer pursuant to this Agreement will be redacted kept confidential in a accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information to any Financing Parties or prospective Financing Parties (and, in each case, to their respective counsel and auditors) so long as such information is furnished by Buyer subject to customary manner) pursuant to which any such alternative sources of confidentiality undertakings in connection with the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandisFinancing.
Appears in 1 contract
Financing Efforts. (a) During the Interim Period, Oryx Buyer shall use its commercially reasonable efforts to take (take, or cause to be taken), all actions and do (to do, or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms and conditions described in the Debt Commitment LetterSecurities Purchase Agreement, including using commercially reasonable efforts to: to (i) satisfymaintain in effect the Securities Purchase Agreement and enforce its rights thereunder, or cause the satisfaction of, or obtain a waiver of, (ii) satisfy on a timely basis all conditions applicable to Oryx under Buyer to obtaining the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior to the Closing Date; set forth therein and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailableunavailable on the terms and conditions contemplated in the Securities Purchase Agreement, Oryx shall give Plains Parent prompt written notice thereof (and in any event within two Business Days) and including because the Buyer Stockholder Approval is not obtained at a meeting of Buyer’s stockholders convened to approve the Financing, Buyer shall use its commercially reasonable efforts to arrange and to obtain a Substitute Debt Financing alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such eventevent but no later than the business day prior to the Outside Date. Oryx Buyer shall deliver promptly (give Seller prompt notice of any material breach by any party other than Buyer to the Securities Purchase Agreement of which Buyer becomes aware, or if Buyer receives written notice from Perseus of a material breach by Buyer of the Securities Purchase Agreement, or any termination of the Securities Purchase Agreement. Buyer shall keep Seller informed on a reasonably current basis of the status of the Financing and in any event within two Business Days) to Plains Parent true, accurate and complete provide copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect material documents related to the Debt Financing to Seller.
(b) Seller and each Subsidiary shall each use its commercially reasonable efforts to take such actions as reasonably requested by Buyer in connection with the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis.Financing
Appears in 1 contract
Samples: Purchase Agreement (Photomedex Inc)
Financing Efforts. (a) During Subject to the Interim Periodterms and conditions of this Agreement, Oryx shall Townsquare will use its commercially 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 maintain in effect, arrange and consummate obtain the Debt Financing on or before proceeds of the Closing Date on the terms described in the Debt Commitment Letter, including using commercially reasonable efforts to: (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to conditions described in the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior to the Closing Date; Financing Letters, and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall will not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to or any waiver of any provision or remedy ofunder, or replace the Debt Commitment Letter or Fee Letter Financing Letters if such amendment, modificationmodification or waiver would reasonably be expected to (A) materially delay or prevent the Closing, waiver or replacement (xB) reduces make the aggregate amount funding of the Debt Financing (including by changing or satisfaction of the amount conditions to obtaining the Financing) materially less likely to occur, (C) materially adversely impact the ability of fees Townsquare to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and enforce its rights against the other Transaction Documents parties to the Financing Letters or otherwise necessary the definitive agreements with respect thereto or (D) materially adversely impact the ability of Townsquare to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to under this Agreement and or the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding likelihood of the Debt Financing or consummation of the Contemplated Transactions or same, except in each case, with the prior written consent of Cumulus; provided, however, that Townsquare may, without the prior written consent of Cumulus, (zi) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause amend the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order Letters to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace entities who had not executed the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “Financing Letters as of the date hereof” of this Agreement or similar phrasing to be deemed a reference to (ii) otherwise amend or replace the date of Financing Letters so long as (x) such amendment, modification, waiver amendments do not impose terms or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) conditions that would reasonably be expected to materially delay, impede delay or prevent the funding Closing and (y) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. Townsquare will use its reasonable best efforts to (I) maintain in effect the Financing Letters (including any definitive agreements entered into in connection with any such Financing Letters), (II) satisfy (or obtain a waiver of) on a timely basis all conditions in the Financing Letters applicable to (and within the control of) Townsquare to obtaining the Financing, (III) negotiate and enter into definitive agreements with respect to the Financing on terms and conditions contained in the Financing Letters (including any “market flex” provisions applicable thereto) or consistent in all material respects with the Financing Letters (such definitive agreements, together with the Financing Letters, the “Financing Agreements”), and (IV) cause each Lender and equity investors to fund its respective committed portion of the Debt Financing (including by suit or other appropriate proceeding to cause the Lenders and the equity investors under the Financing Agreements to fund its respective committed portion of the Financing if all conditions to funding the Financing have been satisfied or waived, provided that Townsquare shall control all aspects of such proceeding, including litigation strategy and selection of counsel). Townsquare will keep Cumulus reasonably informed on a timely basis of the status of Townsquare’s efforts to arrange the Financing and to satisfy the conditions thereof, including, upon Cumulus’ reasonable request, advising and updating Cumulus, in a reasonable level of detail, with respect to status and proposed closing date for the Financing. Upon becoming aware of, or receiving written notice with respect to, any party portion of the amount of the Financing necessary to consummate the Debt transactions hereunder becoming unavailable on the material terms and conditions contemplated by the applicable Financing of which Oryx becomes awareAgreements, (i) Townsquare will promptly notify Cumulus and (ii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual or threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailable, Oryx shall give Plains Parent prompt written notice thereof (and in any event within two Business Days) and shall Townsquare will use its commercially reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient, when taken together with any remaining Financing and any other sources available to obtain Townsquare, to consummate the transactions hereunder with terms and conditions not materially less favorable, taken as a Substitute Debt whole, to Townsquare and Cumulus than the terms and conditions set forth in the applicable Financing Agreements (“Alternative Financing”) as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly event but no later than thirty (30) days before Closing.
(b) Cumulus will use its commercially reasonable efforts to provide, and in any event within two Business Daysto cause its officers, employees and advisors (including its independent auditors) to Plains Parent trueprovide, accurate to Townsquare all such reasonable assistance and complete copies cooperation reasonably requested by Townsquare that is customary and reasonably necessary to assist Townsquare in the arrangement, obtainment and syndication of any Financing contemplated by the Financing Letters or any Alternative Financing. Such cooperation shall include, without limitation, furnishing Townsquare as promptly as reasonably practicable following the delivery of a written request therefor to Cumulus by Townsquare any and all agreements financial information regarding the Stations that is (i) requested by the counterparties to the Financing Letters pursuant to the terms thereof, (ii) reasonably required in connection with the execution of the Financing and/or (iii) necessary to permit Townsquare to prepare the pro forma balance sheets, financial statements and/or offering or other similar documents and/or deliver financial information, in each case, in reference to the Stations as required pursuant to conditions 7, 8 and 9 of the Bridge Commitment Letter and conditions 7 and 8 of the Senior Notes Commitment Letter. Cumulus shall use commercially reasonable efforts to cause its independent auditors to reasonably cooperate with Townsquare (subject to Townsquare’s reimbursement obligation as set forth in this Section 5.15(b), to the extent applicable) to the extent contemplated by the Financing Letters, including commercially reasonable efforts to cause its independent auditors to provide Townsquare with audited financial statements for the Stations for the most recently completed fiscal year ended at least 90 days before the Closing Date and customary “comfort letters” and an “agreed upon procedures letter” in respect thereof, in each case as contemplated by the relevant condition in the Bridge Commitment Letter. Townsquare shall reimburse Cumulus for any third-party costs incurred solely as a result of such assistance and cooperation, including the costs of its independent auditors but excluding attorneys’ fees incurred in connection with review of the Financing Agreements and the other matters contemplated by this Agreement; provided that any fee letter such third party fees shall be approved in writing in advance by Townsquare and; provided, further, that Cumulus’s assistance and cooperation, which requires the incurrence of such third party fees not approved by Townsquare, shall be limited to what Cumulus can provide without incurring such third party fees or other related expenses. Cumulus will be redacted deliver to Townsquare any payoff letters, lien releases (including UCC-3 termination statements) and instruments of termination or discharge as reasonably required in a customary mannerthe Financing Letters.
(c) pursuant Townsquare will indemnify and hold harmless Cumulus and its affiliates and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with any claim, litigation, investigation, action, suit or proceeding brought against Cumulus and its affiliates relating to which any such alternative sources the arrangement of the Substitute Debt Financing shall have committed (including any action taken in accordance with this Section 5.15) and any information used in connection therewith, except with respect to provide (i) any portion information relating to Cumulus provided in writing by Cumulus; or (ii) any fraud or intentional misrepresentation or willful misconduct by such persons. Notwithstanding the foregoing, Cumulus hereby acknowledges payment of the Debt Fee Reduction as described in Section 1.5.
(d) Townsquare acknowledges and agrees that the obtaining of Financing, or any Alternative Financing, is not a condition to Closing and reaffirm its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any Alternative Financing, subject to fulfillment or waiver of the conditions set forth in Article 6; provided, however, if the release of any Liens (other than the “Substitute Financing Commitments”). The terms Permitted Liens, and Liens created by Townsquare) on the Stations or the termination of Sections 5.17(a) and 5.17(b), any financing statement of record with respect to the Debt Financing Stations at or prior to Closing is a condition for obtaining of Financing, or any Alternative Financing, then such release of Liens and the Debt Commitment Letter, termination of financing statement shall apply be a condition to Closing notwithstanding Section 5.9 or anything else herein to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandiscontrary.
Appears in 1 contract
Financing Efforts. (a) During Townsquare has delivered to Cumulus true, correct and complete copies, as of the Interim Perioddate of this Agreement, Oryx shall of (i) a commitment letter in effect as of the date hereof by and among Townsquare, Townsquare Holdings LLC (“Holdings”) and the incremental lenders party thereto (the “Term Loan Commitment Letter”), (ii) a commitment letter in effect as of the date hereof by and among Townsquare, Holdings and the bridge lead arrangers party thereto (the “Bridge Commitment Letter”) and (iii) a commitment letter in effect as of the date hereof by and among Townsquare Media, LLC and the initial purchasers thereto (the “Senior Notes Commitment Letter”, and together with the Term Loan Commitment Letter and the Bridge Commitment Letter, the “Financing Letters”) pursuant to which each of the financial institutions party thereto (the “Lenders”) have committed to provide, subject to the terms and conditions set forth in each respective Financing Letter, financing in the amounts set forth in each respective Financing Letter (collectively, the “Financing”). Cumulus will use its commercially reasonable efforts to take provide, and to cause its officers, employees and advisors (including its independent auditors) to provide, to Townsquare all such reasonable assistance and cooperation reasonably requested by Townsquare that is customary and reasonably necessary to assist Townsquare in the arrangement, obtainment and syndication of any Financing contemplated by the Financing Letters or any Alternative Financing. Such cooperation shall include, without limitation, furnishing Townsquare as promptly as reasonably practicable following the delivery of a written request therefor to Cumulus by Townsquare any and all financial information regarding the Cumulus Stations that is (i) requested by the counterparties to the Financing Letters pursuant to the terms thereof, (ii) reasonably required in connection with the execution of the Financing and/or (iii) necessary to permit Townsquare to prepare the pro forma balance sheets, financial statements and/or offering or other similar documents and/or deliver financial information, in each case, in reference to the Cumulus Stations as required pursuant to conditions 7, 8 and 9 of the Bridge Commitment Letter and conditions 7 and 8 of the Senior Notes Commitment Letter. Cumulus shall use commercially reasonable efforts to cause its independent auditors to be takenreasonably cooperate with Townsquare (subject to Townsquare's reimbursement obligation as set forth in this Section 5.19(a), all actions and do (or cause to be donethe extent applicable), all things necessaryto the extent contemplated by the Financing Letters, proper or advisable including commercially reasonable efforts to maintain in effect, arrange and consummate cause its independent auditors to provide Townsquare with audited financial statements for the Debt Financing on or Cumulus Stations for the most recently completed fiscal year ended at least 90 days before the Closing Date on and customary “comfort letters” and an “agreed upon procedures letter” in respect thereof, in each case as contemplated by the terms described relevant condition in the Debt Bridge Commitment Letter. Townsquare shall reimburse Cumulus for any third-party costs incurred solely as a result of such assistance and cooperation, including using commercially reasonable efforts to: the costs of its independent auditors but excluding attorneys’ fees incurred in connection with review of the Financing Agreements and the other matters contemplated by this Agreement; provided that any such third party fees shall be approved in writing in advance by Townsquare and; provided, further, that Cumulus’s assistance and cooperation, which requires the incurrence of such third party fees not approved by Townsquare, shall be limited to what Cumulus can provide without incurring such third party fees or other related expenses. Cumulus will deliver to Townsquare any payoff letters, lien releases (including UCC-3 termination statements) and instruments of termination or discharge as reasonably required in the Financing Letters.
(b) Townsquare will indemnify and hold harmless Cumulus and its affiliates and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with any claim, litigation, investigation, action, suit or proceeding brought against Cumulus and its affiliates relating to the arrangement of the Financing (including any action taken in accordance with this Section 5.19) and any information used in connection therewith, except with respect to (i) satisfy, any information relating to Cumulus provided in writing by Cumulus; or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate any fraud or intentional misrepresentation or willful misconduct by such persons.
(c) Townsquare acknowledges and enter into definitive agreements (agrees that the obtaining of Financing is not a condition to the extent not already entered into) with respect to the Debt Financing on the terms Closing and subject to the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior to the Closing Date; and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and reaffirm its obligation to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to by this Agreement irrespective and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount independently of the Debt availability of the Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Alternative Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties conditions set forth in Section 5.17 Article 6; provided, however, if the release of any Liens (other than the Permitted Liens, and Liens created by Townsquare) on the Cumulus Stations or the termination of any financing statement of record with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on Cumulus Stations at or prior to the Closing Date. In the event that any portion is a condition for obtaining of the Debt Financing becomes unavailableFinancing, Oryx then such release of Liens and termination of financing statement shall give Plains Parent prompt written notice thereof (and in any event within two Business Days) and shall use its commercially reasonable efforts be a condition to arrange and to obtain a Substitute Debt Financing as promptly as practicable following the occurrence of such event. Oryx shall deliver promptly (and in any event within two Business Days) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Closing notwithstanding Sections 5.17(a) and 5.17(b), with respect 5.10 or anything else herein to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandiscontrary.
Appears in 1 contract
Samples: Asset Purchase and Exchange Agreement (Townsquare Media, LLC)
Financing Efforts. (a) During the Interim PeriodPurchaser shall, Oryx and shall use its commercially reasonable best efforts to take (cause Parent and their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken), all actions and do (to do, or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms and conditions described in or contemplated by the Debt Commitment LetterFinancing Commitments (including complying with any request exercising so-called “flex” provisions contained therein, to the extent required), including using commercially reasonable best efforts to: to (i) satisfymaintain in effect the Financing Commitments, or cause the satisfaction of, or obtain a waiver of, (ii) satisfy on a timely basis all conditions applicable that are within Parent’s control to Oryx under funding in the Debt Commitment Letter on or prior Financing Commitments and such definitive agreements to the Closing Date; be entered into pursuant thereto, (iiiii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing thereto on the terms and subject to conditions described in the conditions contemplated by the Debt Commitment Letter Financing Commitments (including any “market flex” provisions of the Fee Lettercontained therein) on or prior to the Closing Date; , (iv) enforce Parent’s rights under the Financing Commitments and (iiiv) in the event that all conditions in the Financing Commitments have been satisfied, direct the applicable Financing Sources to fund on the Closing Date the Financing required to consummate the Debt Financing at or prior Sale and the other transactions contemplated hereby. To the extent requested by the Company from time to or substantially concurrently with Closing. Oryx time, Purchaser shall not terminate any Debt Commitment Letter without keep the prior written consent Company informed on a reasonably current basis of the Plains Parties if status of its efforts to arrange the available cash Financing (or Alternate Financing) and Purchaser shall provide to the Company copies of all material documents related to the Financing (or Alternate Financing). In the event any portion of the Financing becomes unavailable on hand of Oryx, together with the terms and conditions (including any Substitute “flex” provisions) contemplated in the Financing Commitments or equity commitmentsfor any reason (A) Purchaser shall promptly notify the Company in writing and (B) Purchaser shall, would not be and shall use its reasonable best efforts to, cause Parent and their respective Affiliates to use their respective reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative debt financing from alternative debt financing sources (the “Alternate Financing”) in an amount sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby by this Agreement, which would not (including i) involve terms and conditions that are materially less beneficial to Parent, (ii) involve any conditions to funding the Oryx Refinancing Financing that are not contained in the Financing Commitments and pay all other amounts pursuant (iii) reasonably be expected to this Agreement and prevent, impede or delay the other Transaction Documents or otherwise necessary to consummate consummation of the transactions contemplated thereby and hereby)by this Agreement. Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy In furtherance of, or replace and not in limitation of, the Debt Commitment Letter or Fee Letter if such amendmentforegoing, modification, waiver or replacement (x) reduces in the aggregate amount event that any portion of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and therebybecomes unavailable, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding regardless of the Debt reason therefor, but any bridge facilities contemplated by the Financing Commitments (or consummation of alternative bridge facilities obtained in accordance with this Section 6.13(a)) are available on the Contemplated Transactions or (z) is of a type that is not terms and conditions described in the foregoing clause Financing Commitments (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(aany replacement thereof), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx then Purchaser shall use its commercially reasonable best efforts to cause the proceeds of such bridge financing to be used in lieu of such contemplated Financing Sources providing as promptly as practicable. Without limiting the Debt Financing generality of the foregoing, Purchaser shall promptly notify the Company in writing (A) if Purchaser obtains knowledge that there exists any breach, default, repudiation, cancellation or termination by any party to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach Commitments (or any event, fact, condition event or circumstance that that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any default breach, default, repudiation, cancellation or breach) that would reasonably be expected materially delaytermination), impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx becomes aware, and (iiB) of the receipt by Purchaser or its Affiliates of any written notice or other written communication from any Person lender or other debt financing source with respect to any (A) actual or threatened breach, default, breachrepudiation, cancellation or termination or repudiation by any party to the Debt Commitment Letter, Fee Letter Financing Commitments or (C) if for any reason Purchaser or any other definitive document related Affiliate of Purchaser believes in good faith that (I) there is (or there is reasonably likely to the Financing or (Bbe) a dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter any Financing Commitments or any other event or condition, in each case, definitive document related to the Financing which would cause or reasonably be expected to cause any condition prevent, impede or delay the consummation of the transactions contemplated by this Agreement or would make the funding of the Financing less likely or (II) there is a reasonable possibility that it will not be able to the Debt Financing to fail to be satisfied obtain all or funded on or prior to the Closing Date. In the event that any portion of the Debt Financing becomes unavailableon the terms, Oryx in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, Purchaser shall give Plains provide any information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. None of Purchaser or its respective Affiliates shall (without the prior written consent of the Company) consent or agree to any amendment, replacement, supplement or modification to, or any waiver of any provision under, the Financing Commitments or the definitive agreements relating to the Financing if such amendment, replacement, supplement, modification or waiver (1) decreases the aggregate amount of the Financing to an amount that would be less than an amount that would be required to consummate the Sale and make the other payments required to be made by Purchaser or the Company hereunder or otherwise contemplated in connection herewith and repay or refinance the debt contemplated in this Agreement or the Financing Commitments (together with other reasonably available financial resources of Purchaser and its Affiliates), (2) imposes new or additional conditions in each case which would reasonably be expected to prevent, delay, or impair the availability of the Financing when required to be funded or the satisfaction of the conditions to obtaining the Financing, in each case on the Closing Date or (3) adversely impacts the ability of Parent prompt written notice thereof (and in any event within two Business Days) to enforce its rights against the other parties to the Financing Commitments. Purchaser shall, and shall use its commercially reasonable best efforts to arrange cause Parent and their respective Affiliates to, use their reasonable best efforts to obtain a Substitute Debt maintain the effectiveness of the Financing as promptly as practicable following Commitments until the occurrence transactions contemplated by this Agreement are consummated; provided, however, for the avoidance of such event. Oryx shall deliver promptly doubt, Purchaser may amend, replace, supplement and/or modify the Financing Commitments solely (and in any event within two Business Days1) to Plains Parent trueadd lenders, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter, shall apply to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis.lead arrangers,
Appears in 1 contract
Financing Efforts. (a) During the Interim PeriodEach of Parent and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially reasonable best efforts to take (or cause obtain the Financing not later than the date the Closing is required to be taken)effected in accordance with Section 1.2, all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms described and conditions contained in the Debt Commitment LetterFinancing Commitments (including the flex provisions) and to consummate the Rollover Investment pursuant to the Rollover Letter in accordance with the terms thereof, including using commercially its reasonable best efforts to: to (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx comply with its obligations under the Debt Commitment Letter on or prior to Financing Commitments and the Closing Date; Rollover Letter, (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing Commitments on the terms and subject conditions (including flex provisions) no less favorable to Parent and Merger Sub than those contained in the Financing Commitments, (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub contained in the Financing Commitments (including definitive agreements related thereto) and the Rollover Letter within their control, including the payment of any commitment, engagement or placement fees required as a condition to the conditions contemplated by Financing, and (iv) consummate the Debt Commitment Letter (including any “market flex” provisions of Financing and the Fee Letter) on Rollover Investment at or prior to the Closing Date; Date (it being understood that it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing). Notwithstanding anything to the contrary in the immediately preceding sentence, each of Parent and Merger Sub shall, and shall cause each of its Affiliates to, take all actions reasonably necessary to (i) maintain in effect the Financing Commitments and the Rollover Letter and (iiiii) consummate enforce all of its rights under the Debt Financing at Commitments (or prior any definitive agreements relating thereto) and the Rollover Letter. Notwithstanding any contrary provision of this Agreement, in no event shall Parent, Merger Sub or any of their Affiliates be obligated to or substantially concurrently with Closingcommence any legal action against any Lender. Oryx Parent shall not terminate any Debt Commitment Letter without keep the prior written consent Company informed on a regular basis and in reasonable detail of the Plains Parties if status of its efforts to arrange the available cash on hand Financing (including providing the Company with copies of Oryxdraft and definitive agreements and other documents related to the Financing) and the Rollover Investment. Without limiting the generality of the foregoing, together Parent and Merger Sub shall give the Company prompt notice (x) of any material breach or default by any other party to any of the Financing Commitments, the Equity Commitment Letter, the Rollover Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Person with respect to any Substitute (1) actual or potential breach, default, termination or repudiation by any party to any of the Financing Commitments Commitments, the Equity Commitment Letter, the Rollover Letter or equity commitmentsdefinitive agreements related to the Financing of any provisions of the Financing Commitments, would not the Equity Commitment Letter, the Rollover Letter or definitive agreements related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Financing Commitments, the Equity Commitment Letter, 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 sufficient to satisfy Oryx’s obligations under this Agreement and funded at the Closing or to consummate the transactions contemplated hereby Rollover Investment or the amount of shares of Common Stock and Units to be contributed on the Closing Date, and (z) if at any time for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing or the Rollover Investment on the terms and conditions (including any market flex) contemplated by any of the Oryx Refinancing Financing Commitments, the Equity Commitment Letter, the Rollover Letter or definitive agreements related the Financing. As soon as reasonably practicable, Parent and pay all other amounts pursuant Merger Sub shall provide any information reasonably requested by the Company relating to this Agreement and any circumstance referred to in clause (x), (y) or (z) of the other Transaction Documents immediately preceding sentence. Prior to the Closing, Parent or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx Merger Sub shall not, without the prior written consent of Plains Parentthe Company, permit amend, modify, supplement or waive any amendment of the conditions or contingencies to funding contained in the Financing Commitments (or definitive agreements related thereto) or the Rollover Letter, in each case, to the extent such amendment, modification or supplement or waiver, individually or in the aggregate, could reasonably be expected to have the effect of (A) adversely affecting the ability or likelihood of Parent or Merger Sub to timely consummate the transactions contemplated by this Agreement or (B) amending, modifying or supplementing the conditions or contingencies to the Financing in a manner that makes it less likely the Financing will be made tofunded or imposing new or additional conditions or expanding any existing condition to the receipt of the Financing; provided, consent to any waiver of any provision or remedy ofthat Parent and Merger Sub may amend, modify, supplement, restate or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributableCommitment Letter, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to foregoing clauses (x), (yA) and (z) aboveB), nothing herein shall prevent Oryx from replacing with Parent or amending the Debt Commitment Letter in order Merger Sub to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared promptly deliver to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution Company copies of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver supplement, restatement or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that any portion of all conditions applicable to the Debt Financing becomes unavailableCommitments and/or the Rollover Letter have been satisfied, Oryx shall give Plains Parent prompt written notice thereof (and in any event within two Business Days) and shall use its commercially reasonable best efforts to arrange cause the Lenders, Sponsor and the Rollover Investors to obtain a Substitute Debt Financing as promptly as practicable following fund the occurrence of such event. Oryx shall deliver promptly (and in any event within two Business Days) to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and make the Debt Commitment LetterRollover Investment, shall apply as applicable, required to the Substitute Debt Financing and the Substitute Financing Commitments, mutatis mutandis.consummate the
Appears in 1 contract
Samples: Merger Agreement (Emdeon Inc.)
Financing Efforts. (a) During Subject to the Interim Periodother terms and conditions of this Agreement, Oryx Buyer shall, and shall cause its Subsidiaries to, use its commercially reasonable efforts to (i) maximize the Cash Consideration delivered to the Contributors at Closing in an amount up to $400,000,000, (ii) take (or cause to be taken), all actions and do (or cause to be done), all things reasonably necessary, proper or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before the Closing Date on the terms and conditions described in the Debt Commitment Letter, including using commercially reasonable efforts to: (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior to the Closing Date; and (iii) consummate enforce Buyer’s rights under the Debt Financing at Subscription Agreements, and (iv) take all actions reasonably necessary or prior advisable to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without minimize the prior written consent aggregate amount of redemptions from the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby Trust Account.
(including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx b) Buyer shall not, and shall cause its Subsidiaries not to, without the prior written consent of Plains ParentRoyal and the Contributors, which shall not be unreasonably withheld, conditioned or delayed, (A) terminate the Debt Commitment Letter or any definitive agreement relating to the Debt Commitment Letter or (B) agree to or permit or consent to any amendment amendment, supplement or modification to be made to, consent to or grant any waiver of any material provision or remedy ofunder, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect definitive agreement relating to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
(b) Oryx shall give Plains Parent prompt written notice (and in any event within two Business Days) (i) of any default or breach (or any event, fact, condition or circumstance that with or without notice, lapse of time or both, could reasonably be expected to give rise to any default or breach) that would reasonably be expected materially delay, impede or prevent the funding of the Debt Financing by any party to the Debt Financing of which Oryx 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 threatened default, breach, termination or repudiation by any party to the Debt Commitment Letter, Fee Letter or any other definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or Fee Letter or any other event or condition, in each case, which would cause or reasonably be expected to cause any condition to the Debt Financing to fail to be satisfied or funded on or prior to the Closing Date. In the event that If any portion of the Debt Financing becomes unavailableunavailable on the terms and conditions (including the market flex provisions) contemplated in the Debt Commitment Letter and related fee letter (other than due to the breach by Royal or the Contributors of any representation, Oryx shall give Plains Parent prompt written notice thereof (and warranty or covenant contained herein or as a result of the failure of a condition contained in any event within two Business DaysSection 7.1 or Section 7.3 herein to be satisfied) such that the condition in Section 7.3(d) would not be satisfied on the Closing Date, Buyer shall, and shall cause the Partnership to, use its commercially reasonable efforts to arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative debt financing from the same or alternative sources in an amount sufficient to obtain a Substitute consummate the transactions contemplated by this Agreement and to pay all related fees and expenses related thereto with terms and conditions (including market flex provisions) not materially less favorable, in the aggregate, to Buyer and the Partnership than the terms and conditions set forth in the Debt Financing Commitment Letter, as promptly as reasonably practicable following the occurrence of such event. Oryx shall deliver promptly (and in any event within two Business Days) For purposes of this Agreement, references to Plains Parent true, accurate and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such alternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing (the “Substitute Financing Commitments”). The terms of Sections 5.17(a) and 5.17(b), with respect to the Debt Financing and the Debt Commitment Letter” shall include such documents as are permitted to be amended, shall apply modified or replaced under this Section 6.18(b) and references to the Substitute “Debt Financing and the Substitute Financing Commitments, mutatis mutandisFinancing” shall include any alternative debt financing arranged under this Section 6.18(b).
Appears in 1 contract
Samples: Contribution Agreement (Osprey Energy Acquisition Corp)
