Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing. (b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Letters.
Appears in 3 contracts
Samples: Merger Agreement (Cendant Stock Corp), Agreement and Plan of Merger and Reorganization (Fah Co Inc), Merger Agreement (Avis Rent a Car Inc)
Financing. (a) Acquiror Notwithstanding anything contained in this Agreement to the contrary, Buyers acknowledge and Acquiror Sub agree that Buyers’ obligations hereunder are not conditioned in any manner upon Buyers obtaining any financing. The failure, for any reason, of Buyers to deliver sufficient funds to pay the Holdco Closing Consideration or the Operating Entity Closing Consideration on the Closing Date shall comply with all terms constitute a willful and material breach of this Agreement. In addition, for the avoidance of doubt, Buyers acknowledge and agree that the existence of any conditions contained in the Debt Commitment Letters or the Debt Financing shall not constitute, nor be construed to constitute, a condition to the consummation of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financingtransactions contemplated hereby.
(b) Buyers shall use their commercially reasonable efforts to (i) arrange the Debt Financing on the terms and conditions described in the Debt Commitment Letters, (ii) enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (on terms no less favorable to the applicable Buyer), which agreements shall be in effect as promptly as practicable after the date hereof, but in no event later than the Closing, and (iii) consummate the Debt Financing no later than the Closing (it being understood that any bridge facility described in the Debt Commitment Letters may be terminated or reduced in accordance with the terms of the applicable Debt Commitment Letter) provided that (x) the Buyers will not, and will not permit their Affiliates to, consummate any debt or equity financing that reduces or terminates the bridge facility commitments prior to the Closing Date unless the proceeds thereof are held in the form of cash or temporary cash investments by the relevant Buyer until the Closing Date and (y) Holdco Buyer will not without Sellers consent permit the bridge facility commitment under the Debt Commitment Letter to be terminated because it has been reduced to $300 million unless Holdco Buyer delivers evidence to the Company that it has obtained substitute financing in an amount sufficient to permit Holdco Buyer to consummate the Transactions contemplated hereby. In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Debt Financing becomes unavailable for any reason under in the manner or from the sources contemplated in the Debt Commitment Letters, Acquiror (A) Buyers shall promptly notify the Sellers and (B) Buyers shall use their commercially reasonable efforts to arrange to obtain any such portion from alternative sources, on terms that are not materially less favorable from the standpoint of Buyers than the terms set forth in the Debt Commitment Letters, as promptly as practicable following the occurrence of such event, including entering into definitive agreements with respect thereto (such definitive agreements entered into pursuant to the first or second sentence of this Section (b) being referred to as the “Financing Agreements”). Buyers shall (x) furnish to the Company complete, correct and executed copies of the Financing Agreements promptly upon their execution, (y) give the Company prompt notice of any material breach by any party of any of the Debt Commitment Letters, any alternative financing commitment or the Financing Agreements of which Buyers become aware or any termination thereof and (z) otherwise keep the Company reasonably informed of the status of Buyers’ efforts to arrange the Debt Financing (or any replacement thereof).
(c) The Company shall, at the sole cost of Buyers, use its commercially reasonable efforts to, and shall cause its Subsidiaries and their respective Representatives to secure use their commercially reasonable efforts to, provide all cooperation in connection with the arrangement of such Debt Financing and any related financings described in the Debt Commitment Letters (the “Related Financings”) as may be reasonably requested by Buyers (provided that such requested cooperation does not unreasonably interfere with the business of the Company), including using commercially reasonable efforts to (i) participate in meetings, due diligence sessions, presentations, and sessions with rating agencies, (ii) assist with the preparation of materials for rating agency presentations, registration statements, confidential information memoranda and similar documents required in connection with the Debt Financing or Related Financings, (iii) furnish Buyers and the Financing Sources with financial and other pertinent information regarding the Company and its Subsidiaries including the Required Information, (iv) obtain customary accountant’s comfort letters and consents from the Company’s independent auditors with respect to the Required Information; and (v) assist with the preparation of any pledge and security documents or other definitive financing documents and facilitating the pledging of collateral as may be reasonably requested by a Buyer, provided that no obligation or pledge of the Company or its Subsidiaries under any such document or agreement shall be effective until the Closing.
(d) Each Buyer shall indemnify, severally but not jointly, and hold harmless Sellers and each of their respective directors, officers, managers, employees, stockholders, representatives and Affiliates, from and against any and all Losses suffered or incurred by them in connection with such Buyer’s arrangement of its portion of the Financing on terms no less favorable Financing, any cooperation provided pursuant to this Section 6.19 and any information utilized in connection therewith, except in the aggregate event such Losses arose out of or result from the gross negligence, fraud, willful misconduct or intentional misrepresentation of any Seller, any Company Entity or any such directors, officers, managers, employees, stockholders, representatives and Affiliates.
(e) Within fifteen (15) Business Days of the date hereof, Buyers shall provide to Acquiror than the terms contained Sellers written notice of any Debt Obligations of the Company Entities that Buyers plan to repay in full at the Commitment LettersClosing (which shall include any Interim Debt Obligations). Acquiror The Company shall, at the sole cost of Buyers, use its commercially reasonable efforts to, and shall immediately notify Holdings if cause its Subsidiaries and their respective Representatives to use their commercially reasonable efforts to, provide commercially reasonable cooperation in connection with the repayment of such Debt Obligations. Buyers’ acknowledge and agree that their obligations hereunder are not conditioned in any Lenders manner upon the Company obtaining consent under any Contract with respect to a Debt Obligation. For the avoidance of doubt Buyer shall notify Acquiror or Acquiror Sub that it is amending bear (i) the Commitment Letterscost of obtaining any consents under Debt Obligations and (ii) any prepayment and other related fees and expenses in connection with prepayment of Debt Obligations contemplated hereby.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Sunedison, Inc.), Purchase and Sale Agreement (TerraForm Power, Inc.)
Financing. (a) Acquiror The Buyer shall, and Acquiror Sub shall comply with all terms cause the other members of the Commitment Letters and shall take Buyer Group to, take, or cause to be taken, all actions required and do, or cause to be done, all things necessary, proper or advisable to obtain, or cause to be obtained, the proceeds of the Debt Financing on their part under the terms of and conditions described in the Commitment LettersDebt Financing Commitment, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that respect to: (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating maintaining in effect the Debt Financing Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or complying with all obligations thereunder; (ii) Acquiror has agreed to any amendment negotiating, executing and delivering definitive agreements with respect to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Debt Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendmentthe “Debt Financing Agreements”) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable than, and otherwise consistent with, the terms and conditions contained therein; and (iii) satisfying on a timely basis all conditions in the aggregate Debt Financing Commitment applicable to Acquiror than the Buyer’s obligations thereunder and complying with the terms thereof; provided that this covenant shall not require the Buyer to commence any Action against any of the other parties to the Debt Financing Commitment or the definitive documentation for the Debt Financing, if any, with respect thereto. In the event that all conditions contained in the Debt Commitment Letter have been satisfied (or upon funding will be satisfied), the Buyer shall cause the Debt Financing Sources to fund the Debt Financing, but in no event will the Buyer be required to do so prior to the time the Closing is required to occur under the terms of this Agreement. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, the Buyer shall use its reasonable best efforts to arrange to obtain as promptly as practicable, on terms that are not less favorable to the Buyer than the Debt Financing contemplated by such Debt Commitment Letters, as applicable, alternative sources of financing in an amount sufficient, when added to the portion of the Debt Financing that is available and the Buyer’s cash on hand, to consummate the Transactions and pay any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses (“Alternative Debt Financing”) and to obtain, and, when obtained, to provide the Company with a copy of, a new financing commitment that provides for such Alternative Debt Financing (the “Alternative Debt Financing Commitment Letter”). Acquiror For the purposes of this Agreement, the terms “Debt Commitment Letter” and “Fee Letter” shall immediately notify Holdings if be deemed to include any Lenders Alternative Debt Financing Commitment Letter or any fee letter referred to in such Alternative Debt Financing Commitment Letter (which such fee letters, for the avoidance of doubt, may be redacted in the same manner as the Fee Letters) with respect to any Alternative Debt Financing arranged in compliance with this Section 9.7(a) (and any Debt Commitment Letter and Fee Letter remaining in effect at the time in question) and the term “Debt Financing” shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersbe deemed to include any such Alternative Debt Financing.
Appears in 3 contracts
Samples: Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.)
Financing. (a) Acquiror IDB Buyer acknowledges and Acquiror Sub agrees that Seller and its Affiliates and its and their respective Representatives shall comply not have any responsibility for, or incur any liability to any Person under, any financing that IDB Buyer may raise in connection with the transactions contemplated by this Agreement and that IDB Buyer shall indemnify and hold harmless Seller and its Affiliates and its and their respective Representatives from and against any and all terms losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Commitment Letters Debt Financing (including any claims asserted by the Financing Sources) and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all any information that they may request and entering into appropriate loan agreements or other agreements utilized in order to obtain the Financingconnection therewith.
(b) In IDB Buyer shall, and shall cause its Representatives and Affiliates to, take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Debt Financing as soon as reasonably practical after the date of this Agreement, but in any event that prior to the Closing and to obtain the proceeds of the Debt Financing on the terms and conditions, taken as a whole (including the flex provisions) described in the Debt Commitment Letter, including executing and delivering all such documents and instruments as may be reasonably required thereunder, including definitive agreements with respect to the financing on the terms and conditions contained in the Debt Commitment Letter (the “Debt Financing Documents”) and:
(i) complying with and maintaining in effect the Debt Financing and the Debt Commitment Letter, negotiating and entering into definitive Debt Financing Documents with respect thereto (and maintaining in effect and complying with the terms thereof) on the terms and conditions (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, any Lender “flex” provisions set forth in the Debt Commitment Letter (including as specified in any Fee Letter provided pursuant to Section 3.11)) no less favorable, taken as a whole, to IDB Buyer than those contained in the Debt Commitment Letter, which agreements shall notify Acquiror be in effect as promptly as practicable after the date hereof, but in no event later than the Closing Date; provided, however, that, without limiting the foregoing, in no event shall any of the Debt Financing Documents (nor shall any amendment, supplement, waiver or Acquiror Sub other modification thereto be reasonably expected to): (A) reduce the aggregate amount of the Debt Financing provided for in the Debt Commitment Letter (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and the payment of all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing); (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Commitment Letter, amend or modify any of such conditions or other contingencies in a manner adverse to IDB Buyer or Seller (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; (C) contain terms (other than those terms expressly set forth in the Debt Commitment Letter that it would reasonably be expected to (1) prevent, impede or delay the consummation of the transactions contemplated by this Agreement or the Debt Commitment Letter or the date on which the Debt Financing would be obtained, or (2) make the funding of Debt Financing less likely to occur; (D) adversely impact the ability of IDB Buyer to enforce its rights against the Financing Sources; or (E) impose obligations on Seller and its Affiliates;
(ii) satisfying, or causing its Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letter and Debt Financing Documents relating thereto (including by paying any commitment, engagement or placement or other fees that become due and payable under or with respect to the Debt Commitment Letter or Debt Financing Documents);
(iii) accepting (and complying with) to the fullest extent all “market flex” provisions contemplated by the Debt Commitment Letter and the Debt Financing Documents;
(iv) obtaining all rating agency approvals necessary to obtain the Debt Financing;
(v) enforcing its rights under the Debt Commitment Letter and Debt Financing Documents in the event of a breach by the Financing Sources under the Debt Commitment Letter and Debt Financing Documents relating thereto; and
(vi) causing the Financing Sources and any other Persons providing Debt Financing to fund the Debt Financing in immediately available funds at the time the Closing is withdrawing required to occur pursuant to the terms and conditions hereof.
(c) IDB Buyer shall not agree to or terminating permit any amendment, supplement or other modification or replacement of, or grant any waiver of any condition, remedy or other provision under, the Debt Commitment Letters Letter or the Debt Financing Documents without the prior written consent of Seller if such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing), from that contemplated by the Debt Commitment Letter delivered as of the date hereof, (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt or funding of the Debt Financing in a manner adverse to Seller or IDB Buyer, (iii) make it less likely that the Debt Financing would be funded (including by making the conditions to obtaining the Debt Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of IDB Buyer to timely consummate the transactions contemplated by this Agreement, (iv) adversely impact the ability of IDB Buyer to enforce its rights against the other parties to the Debt Commitment Letters cannot be satisfied and will not be waived Letter or (iiv) Acquiror has agreed to any amendment otherwise contravene the limitations set forth in Section 5.16(b)(i)(A)-(E). IDB Buyer shall not agree to the withdrawal, repudiation, termination or rescission of the Debt Commitment Letters that establish additional conditions to Letter or Debt Financing Documents or any provision thereof without the Lenders' obligations to provide prior written consent of Seller. Upon any amendment, supplement or modification of the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed Debt Commitment Letter in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"accordance with this Section 5.16(c), then Acquiror IDB Buyer shall immediately notify Holdings of deliver a copy thereof to Seller and references herein to “Debt Commitment Letter” shall include such Funding Termination Event. documents as amended, supplemented or modified in compliance with this Section 5.16(c) and references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as amended, supplemented or modified in compliance with this Section 5.16 and the financing contemplated by the Debt Financing Documents entered into in compliance with this Section 5.16, as applicable.
(d) In the event that all or any portion of the Debt Financing becomes or could become unavailable on the terms and conditions (including any “flex” provisions) or from the sources contemplated in the Debt Commitment Letter or the Debt Financing Documents for any reason under or the Debt Commitment LettersLetter or the Debt Financing Documents shall be withdrawn, Acquiror repudiated, terminated or rescinded for any reason (but without limiting the obligations of IDB Buyer in the penultimate sentence of Section 5.16(c) and in Section 5.16(b)(v)), (i) IDB Buyer shall use its commercially reasonable efforts immediately so notify Seller and (ii) IDB Buyer shall arrange and obtain, as promptly as practicable following the occurrence of such event (and in any event no later than the Closing Date), and shall negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative sources (the “Alternative Financing”) in an amount sufficient to secure consummate the transactions contemplated by this Agreement and pay all related fees and expenses (or such replace any unavailable portion of the Debt Financing), and shall obtain a new financing commitment letter (including any associated engagement letter and related fee letter) with respect to such Alternative Financing (collectively, the “New Debt Commitment Letter”), copies of which shall be promptly provided to Seller. Notwithstanding the foregoing, no New Debt Commitment Letter may expand upon the conditions precedent or contingencies to the funding or receipt of the Debt Financing on terms no less favorable the Closing Date as set forth in the aggregate Debt Commitment Letter in effect on the date hereof or otherwise include terms (including any “flex” provisions) that would reasonably be expected to Acquiror than make the likelihood that such Debt Financing would be funded less likely. In the event any Alternative Financing is obtained and a New Debt Commitment Letter is entered into in accordance with this Section 5.16(d) (i) any reference in this Agreement to “Debt Financing” shall mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, and (ii) any reference in this Agreement to the “Debt Commitment Letter” (or defined terms contained that use such phrases) and to “Debt Financing Documents” shall be deemed to include the Alternative Financing and any New Debt Commitment Letter. Without Seller’s prior written consent, IDB Buyer shall not directly or indirectly take any action that could result in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersDebt Financing not being available.
Appears in 2 contracts
Samples: Purchase Agreement (Cme Group Inc.), Purchase Agreement (GFI Group Inc.)
Financing. (a) Acquiror GETCO shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with to do, or cause to be done, all terms things necessary to arrange and obtain the proceeds of the Financing (including, if necessary to consummate the transactions contemplated hereby, the “bridge” loans contemplated in the Debt Commitment Letters and shall take all actions required Letter) on their part under the terms and conditions set forth in the Financing Letters (or on terms more favorable in the aggregate to GETCO), including the execution and delivery of all such instruments and documents as may be reasonably required thereunder. Without limiting the generality of the Commitment foregoing, GETCO shall: (i) use its reasonable best efforts to maintain in full force and effect the Financing Letters in accordance with the terms and subject to the conditions set forth therein; (ii) as promptly as practicable after the date of this Agreement, use its reasonable best efforts to negotiate, execute and deliver the definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”) on the terms and conditions (including the “market flex” terms and conditions) contained in the Debt Financing Letters or on other terms more favorable in the aggregate to GETCO; provided, however, that in no event shall any of the Definitive Financing Agreements: (A) reduce the aggregate amount of the Debt Financing provided for in the Debt Financing Letters to an amount that is less than the aggregate amount of Debt Financing sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27; (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Financing Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements amend or modify any of such conditions or other agreements contingencies in order a manner adverse to GETCO (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; or (C) contain terms (other than those terms expressly set forth in the Debt Financing Letters) that would reasonably be expected to (1) prevent or delay the Effective Time or the date on which the Debt Financing would be obtained or (2) make the funding of Debt Financing less likely, in any material respect, to occur; (iii) pay in a timely manner any commitment or other fees that are or become due and payable under or with respect to the Debt Financing Letters on or following the date of this Agreement; (iv) use its reasonable best efforts to obtain all rating agency approvals necessary to obtain the Debt Financing and to satisfy all other conditions to obtaining the Debt Financing; and (v) enforce its rights under the Financing Letters and the Definitive Financing Agreements.
(b) In Without limiting any of its obligations hereunder, GETCO shall keep Knight informed on a reasonably current basis and in reasonable detail with respect to the event that status of the Debt Financing. GETCO shall deliver to Knight accurate and complete copies of the executed Definitive Financing Agreements promptly after their execution. Without limiting the generality of the foregoing, GETCO shall give Knight notice as promptly as reasonably practicable of (i) any Lender shall notify Acquiror material breach or Acquiror Sub that it is withdrawing default on the part of any party to any Financing Letter or terminating the Commitment Letters or that any of the conditions to the Definitive Financing in the Commitment Letters cannot be satisfied and will not be waived or Agreement, (ii) Acquiror has agreed any notice from a party to any amendment Financing Letter or Definitive Financing Agreement of such party’s intent to not comply with any of its commitments or other material obligations under any Financing Letter or Definitive Financing Agreement, (iii) any actual or purported withdrawal, modification, termination, rescission or repudiation of any Financing Letter or Definitive Financing Agreement, or any provision thereof, and (iv) any other circumstance resulting in GETCO no longer believing in good faith that it will be able to obtain, prior to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")Closing Date, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing on the terms, in the manner or from the sources contemplated by any Financing Letter or Definitive Financing Agreement.
(c) GETCO shall not permit any amendment, supplement or modification to be made to, or agree to permit any waiver of any provision or remedy under, any Financing Letter or Definitive Financing Agreement without Knight’s prior consent, except that GETCO may amend, supplement or otherwise modify any Financing Letter or Definitive Financing Agreement (including by joining one or more additional lenders or agents as parties thereto) if such amendment, supplement or modification: (i) does not reduce the aggregate amount of the Financing to an amount that is less than the aggregate amount of Financing sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27 (it being understood that, subject to the requirements of this Section 7.16(c), such amendment, supplement or other modification to any Debt Financing Letter or Definitive Financing Agreement may provide for the assignment of any portion of the commitments under the Debt Financing Letters to additional agents or arrangers and grant such persons approval rights with respect to certain matters as are customarily granted to additional agents or arrangers); (ii) does not expand the conditions or other contingencies to the receipt or funding of the Financing, does not amend or modify, in a manner adverse to GETCO any of the conditions or other contingencies to the receipt or funding of the Financing and does not impose new or additional conditions or other contingencies to the receipt or funding of the Financing; (iii) does not impair the ability of GETCO to enforce its rights against other parties to the Financing Letters and (iv) would not reasonably be expected to (A) prevent or delay the Effective Time or the date on which the Financing would be obtained or (B) make the funding of the Financing less likely, in any material respect, to occur. GETCO shall not agree to the withdrawal, repudiation, termination or rescission of any Financing Letter or Definitive Financing Agreement or any provision thereof. GETCO shall promptly deliver to Knight true and complete copies of any such amendment, modification or waiver.
(d) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in any Debt Financing Letter or Definitive Financing Agreement for any reason under the Commitment Lettersreason, Acquiror or any Debt Financing Letter or Definitive Financing Agreement shall be withdrawn, repudiated, terminated or rescinded for any reason, then GETCO shall use its commercially reasonable best efforts to secure arrange and obtain, as promptly as practicable, from the same and/or alternative financing sources, alternative financing in an amount sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27; provided that in no event shall GETCO be obligated to obtain alternative financing on terms and conditions that in the aggregate are materially less favorable to GETCO than the terms and conditions provided for in the Debt Commitment Letter as of the date hereof (as determined in the good faith judgment of GETCO). In the event any alternative financing is obtained in accordance with this Section 7.16(d) (“Alternative Financing”), references in this Agreement to the Debt Financing shall be deemed to refer to such Alternative Financing (in lieu of the Debt Financing replaced thereby), and if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the Debt Financing Letters and the Definitive Financing Agreements shall be deemed to refer to such commitment letters and definitive financing agreements relating to such Alternative Financing (in lieu of the Debt Financing Letters and the Definitive Financing Agreements replaced thereby), and all obligations of GETCO pursuant to this Section 7.16 shall be applicable thereto to the same extent as GETCO’s obligations with respect to the Financing replaced thereby. GETCO shall promptly deliver to Knight true and complete copies of any commitments with respect to Alternative Financing.
(e) Prior to the Closing, Knight shall use reasonable best efforts, shall cause its subsidiaries to use reasonable best efforts, and shall use its reasonable best efforts to cause its respective Representatives, to provide to GETCO all reasonable cooperation requested by GETCO that is necessary in connection with the Debt Financing, including (i) furnishing GETCO and its Financing Sources the Required Information, (ii) participating in a reasonable number of meetings (including customary one-on-one meetings among the parties acting as lead arrangers or such portion agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of Knight), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing, (iii) assisting with the preparation of materials for rating agency presentations, bank information memoranda, offering documents, private placement memoranda and similar documents required in connection with the Debt Financing (including requesting any consents of accountants for use of their reports in any materials relating to the Debt Financing and the delivery of one or more customary representation letters), (iv) obtaining accountants’ comfort letters and legal opinions as reasonably requested by GETCO, (v) facilitating the pledging of collateral in connection with the Debt Financing, (vi) executing and delivering any documents as may be reasonably requested by GETCO, (vii) causing the taking of corporate actions (subject to the occurrence of the Closing) by Knight and its subsidiaries reasonably necessary to permit the completion of the Financing and (viii) facilitating the execution and delivery at the Closing of definitive documents related to the Debt Financing on terms no less favorable in the aggregate to Acquiror than the terms contained contemplated by the Debt Financing; provided, that such requested cooperation does not materially and adversely interfere with the ongoing operations of Knight and its subsidiaries; provided, further, that neither Knight nor any of its subsidiaries shall be required to commit to take any action that, nor execute any document or enter into any agreement the effectiveness of which, is not contingent upon the Closing. None of Knight or any of its subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) or incur any other liability or provide or agree to provide any indemnity in connection with the Commitment LettersFinancing or any of the foregoing, prior to the Effective Time. Acquiror GETCO shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Letters.indemnify and hold harmless Knight, its subsidiaries and
Appears in 2 contracts
Samples: Merger Agreement (Knight Capital Group, Inc.), Merger Agreement (GETCO Holding Company, LLC)
Financing. (a) Acquiror The Buyer shall use its reasonable best efforts to (i) satisfy all conditions applicable to the Buyer in the Debt Provider Letter; and Acquiror Sub (ii) consummate the Debt Funding at or prior to the Closing. Immediately after this Agreement is executed and delivered by the Parties, the Buyer shall comply with trigger the call provisions under the Debt Provider Letter, provide all terms of the Commitment Letters applicable notices thereunder and shall take any and all other actions required on their part under to be taken by the terms Buyer thereunder to call the Buyer Debt Provider to contribute the requisite amount of its commitment to the Commitment Letters, including without limitation, providing Buyer sufficient (when taken together with other sources of funds immediately available to the Lenders with Buyer) to enable the Buyer to pay the Purchase Price and any and all information that they may request Transaction Expenses payable by the Buyer pursuant to this Agreement and entering into appropriate loan agreements or other agreements in order to obtain the FinancingAncillary Documents.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing Debt Funding becomes unavailable for any reason under on the Commitment Lettersterms and conditions contemplated in the Debt Provider Letter, Acquiror the Buyer shall use its commercially reasonable best efforts to secure all obtain any such unavailable portion from alternative sources on comparable or such portion more favorable terms to the Buyer (as determined in the reasonable good faith judgment of the Financing Buyer) as promptly as practicable following the occurrence of such event. The Buyer shall promptly provide the Seller with the documentation evidencing such alternative sources of financing and shall give the Seller prompt notice (but in any event within two (2) Business Days) of any material breach by any party to the Debt Provider Letter or any termination of the Debt Provider Letter. The Buyer shall keep the Seller informed on terms no less favorable a reasonably current basis in reasonable detail of the aggregate status of its efforts to Acquiror than arrange for replacement financing, if necessary, and shall not permit any material amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Provider Letter (or any replacement thereof) without first consulting with the Seller or, if such amendment or modification would or would be reasonably expected to prevent, delay or hinder the Buyer’s ability to consummate the Transactions, without first obtaining the Seller’s prior written consent (which consent shall not be unreasonably withheld).
(c) For the avoidance of doubt, if the Buyer fails to obtain the Debt Funding contemplated by the Debt Provider Letter, or any alternative financing, the Buyer shall continue to be obligated to perform its obligations under this Agreement, including this Section 5.06, and to consummate the Stock Purchase, the Asset Purchase and the other Transactions on the terms contained contemplated hereby (subject only to satisfaction or waiver of the conditions set forth in Sections 7.01 and 7.02, as applicable). The Parties hereby agree and acknowledge that, with respect to the Commitment LettersBuyer’s obligations pursuant to this Section 5.06, time is of the essence. Acquiror Notwithstanding anything to the contrary in this Agreement, there shall immediately notify Holdings if be no cure period for any Lenders shall notify Acquiror or Acquiror Sub that it is amending breach by the Commitment LettersBuyer of this Section 5.06.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Veeco Instruments Inc), Stock Purchase Agreement (Bruker Corp)
Financing. Prior to the Closing, the Sellers shall use their reasonable best efforts to provide in a timely manner to the Buyer or its Financing Sources, and shall use their reasonable best efforts to cause their senior management and representatives, including legal and accounting representatives, to provide to the Buyer, in each case at the Buyer’s sole expense, all cooperation reasonably requested by the Buyer or its Financing Sources that is necessary in connection with the arrangement of any financing to be obtained by the Buyer in connection with any debt financing that the Buyer may elect to pursue in connection with the transactions contemplated by this Agreement (the “Financing“), including (a) Acquiror furnishing the Buyer and Acquiror Sub shall comply its Financing Sources as promptly as practicable with all terms of financial and other pertinent information regarding the Commitment Letters Sellers as may be reasonably requested by the Buyer or its Financing Sources and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order is customary for financings similar to obtain the Financing.
; (b) In participating in a reasonable number of meetings in connection with the event Financing; (c) delivery of customary authorization letters, confirmations and undertakings; (d) preparation and delivery as promptly as practicable to the Buyer and its Financing Sources of the information and deliverables required in connection with the Financing; (e) requesting that their independent accountants cooperate with the Financing; and (if) facilitating the pledging of collateral (including obtaining any Lender payoff letters and other cooperation in connection with the repayment or requirement of existing indebtedness and the release and termination of any and all related Liens); provided, that nothing herein shall notify Acquiror require such cooperation to the extent it would interfere unreasonably with the business or Acquiror Sub operations of the Sellers. The Sellers shall not be required to take any action that it is withdrawing would subject them to actual or terminating potential liability, to bear any cost or expense (other than reasonable out-of-pocket costs) or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Commitment Letters Financing or that any of the conditions foregoing prior to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersClosing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (KAR Auction Services, Inc.), Asset Purchase Agreement (KAR Auction Services, Inc.)
Financing. (a) Acquiror Subject to the terms and Acquiror Sub conditions of this Agreement, Purchaser shall comply with use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain and to consummate the Debt Financing on the terms of and conditions described in the Debt Commitment Letters (including the flex provisions), subject to any amendments or modifications thereto permitted by this Section 5.21, including using its reasonable best efforts to (i) maintain in effect the Debt Commitment Letters and shall take all actions required on their part under the terms of financing commitments thereunder (the Commitment Letters“Financing Commitments”), including without limitationsubject to any amendments or modifications thereto permitted by Section 5.21(b), providing the Lenders (ii) negotiate, execute and deliver definitive agreements with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions respect to the Financing Commitments on terms and conditions (including the flex provisions) contained therein, subject to any amendments or modifications thereto permitted by Section 5.21(b), (iii) satisfy on a timely basis all conditions that are applicable to Purchaser contained in the Commitment Letters cannot be satisfied and will not be waived Financing Commitments, including the payment of any commitment, engagement or (ii) Acquiror has agreed to any amendment placement fees required as a condition to the Commitment Letters that establish additional conditions Debt Financing and due and payable by Purchaser, (iv) enforce its rights under the Financing Commitments, (v) comply with its obligations under the Financing Commitments and (vi) consummate the Debt Financing at or prior to the Lenders' obligations to provide Closing, including drawing on any interim or bridge financing under the Financing or otherwise makes it more difficult for Acquiror Commitments. Purchaser shall provide such information as shall be necessary to obtain keep Seller informed on a reasonable basis and in reasonable detail of the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings status of such Funding Termination Eventits efforts to arrange the Debt Financing. In the event Purchaser becomes aware that all or any portion of the Debt Financing has become unavailable, Purchaser shall promptly notify Seller and shall, in consultation with Seller, use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions no less favorable to Purchaser and to Seller than the terms and conditions set forth in the Debt Commitment Letters and that would not have any of the effects specified in Section 5.21(b) (any such alternative financing, “Alternative Financing”). If an Alternative Financing is required in accordance with this Section 5.21(a), Purchaser shall obtain, and when obtained, provide Seller with a copy of, a new financing commitment that provides for such Alternative Financing, and Purchaser shall comply with its covenants in this Section 5.21(a) and Section 5.21(b) with respect to such new financing commitment (as if such financing commitment were the Debt Commitment Letter). Purchaser shall give Seller prompt notice of (A) subject to any amendments or modifications permitted by Section 5.21(b), the expiration or termination of all or any portion of the Financing becomes unavailable Commitments (including pursuant to any Alternative Financing) or any definitive documentation relating to the foregoing; (B) for any reason reason, all or any portion of the Debt Financing (including pursuant to any Alternative Financing or definitive documents relating to any of the foregoing) becoming unavailable; or (C) a breach or repudiation by any party to the Debt Commitment Letters or Alternative Financing (including any definitive documents relating to any of the foregoing) of which Purchaser becomes aware.
(b) Notwithstanding anything to the contrary in this Agreement, Purchaser shall not, without the prior written consent of Seller, agree to or permit any amendment, replacements, supplement or other modification of, or waive any of its rights or remedies under the Debt Commitment Letters or Fee Letters; provided that Purchaser may (i) amend, replace, supplement, modify or waive any provision of the Debt Commitment Letters or related Fee Letters if such amendment, replacement, supplement, modification or waiver does not (w) add new (or adversely modify any existing) conditions to the consummation of the Debt Financing as compared to those in the Debt Commitment Letters and Fee Letters as of the date hereof, (x) adversely affect the ability of Purchaser to timely consummate the Sale and the other transactions contemplated hereby (including, by making the conditions therein less likely to be satisfied or materially delaying, materially impeding, or preventing the Closing), (y) adversely affect the ability of Purchaser to enforce its rights against the other parties to the Debt Commitment Letters or Fee Letters as in effect on the date hereof or in any definitive agreements executed in connection herewith or (z) reduce the aggregate amount of the Debt Financing contemplated thereunder and (ii) amend the Debt Commitment Letters to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement, so long as any such addition would not reasonably be expected to prevent, materially hinder or materially delay the consummation of the Debt Financing or the transactions contemplated by this Agreement or the availability of the Debt Financing under the Debt Commitment Letters. Purchaser shall promptly deliver to Seller copies (redacted only as to fee amounts, Acquiror dates and certain other economic terms, including in respect of “market flex” and “securities demand” provisions, in the case of the Fee Letters) of any such amendment, replacement, supplement or other modification or waiver of the Debt Commitment Letter or Fee Letters.
(c) Prior to the Closing, Seller shall use reasonable best efforts to, and cause the members of the Alkali Group and their respective officers, employees and advisors, including financial and accounting advisors, of Seller and the members of the Alkali Group to, provide such cooperation as is reasonably requested by Purchaser in connection with the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller and its Subsidiaries), including (i) participating in a reasonable number of lender meetings and calls, drafting sessions, rating agency presentations, due diligence sessions (including accounting due diligence sessions) and sessions with prospective lenders, investors and ratings agencies, in each case at mutually agreed times; (ii) assisting Purchaser in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for any of the Debt Financing and (B) materials for rating agency presentations; (iii) providing the Required Financial Information; (iv) requesting that its independent auditors cooperate with the Debt Financing and using commercially reasonable efforts to secure all or cause such independent auditors to provide customary “comfort” letters (including “negative assurance” comfort), together with drafts of such comfort letters such independent accountants are prepared to deliver upon the “pricing” of any high-yield bonds being issued in lieu of any portion of the Financing on terms no less favorable Debt Financing; and (v) participation by the senior management team of the Business in the aggregate marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, syndication documents, business projections and similar documents and (B) attending a reasonable number of meetings at mutually agreeable times with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions; ((vi) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letters to Acquiror than prospective lenders and identifying any portion of the terms information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing documents; (vii) facilitating the execution and delivery by the appropriate officers of Alkali Holdco. of loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letters; (viii) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any joint venture thereof; (ix) furnishing Purchaser and the Debt Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business required by the Debt Commitment Letters required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 Business Days prior to the Closing Date; and (x) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; provided that (v) neither Seller nor any of its Affiliates shall be required to pay any commitment or other similar fee, provide any security, make any representations, provide any indemnification or incur any other Liability in connection with the Debt Financing (w) the effectiveness of any documentation executed by Seller with respect to the Debt Financing shall be subject to the consummation of the Closing, (x) neither any Persons who are directors of the Seller or any of its subsidiaries at any time prior to the Closing (“Pre-Closing Directors”) nor Seller or any of its Subsidiaries shall be required to pass resolutions or consents to approve or authorize the execution of the Debt Financing Seller nor any of its Affiliates shall be required to deliver (1) any financial information in a form not customarily prepared by the Seller or its Affiliates or (2) any financial information with respect to a fiscal period that has not yet ended, and (z) Purchaser shall promptly, upon request by Seller, reimburse and indemnify Seller for all costs or Liabilities incurred by Seller or any of its Affiliates in connection with the Debt Financing (including any Alternative Financing), any such cooperation pursuant to this Section 5.21 or any information utilized in connection therewith (other than historical information relating to the Business provided by Seller and or its Subsidiaries in writing for the purpose of arranging the Debt Financing), except to the extent such costs or Liabilities are the direct result of the gross negligence or willful misconduct of the Seller or any of its Subsidiaries or other representatives (acting in their capacity as such) . Acquiror The obligations of Purchaser in the foregoing clause (z) shall immediately notify Holdings if survive any Lenders termination of this Agreement. Any information provided to Purchaser pursuant to this Section 5.21(c) shall notify Acquiror or Acquiror Sub that it is amending be subject to the Commitment LettersConfidentiality Agreement and Section 5.2.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Tronox LTD), Stock and Asset Purchase Agreement (FMC Corp)
Financing. (a) Acquiror In furtherance of and Acquiror Sub without limiting the generality of Section 5.2, Purchaser shall comply use its reasonable best efforts to arrange and consummate the financing necessary for it to consummate the transactions contemplated by this Agreement, including using its reasonable best efforts (A) to negotiate in good faith definitive agreements respecting such financing on reasonable terms with respect thereto, (B) to satisfy all terms conditions provided in such definitive agreements, (C) to negotiate in good faith such modifications to such financing as may be necessary or advisable to reflect any change in market conditions which occurs after the date of this Agreement, (D) if any portion of such financing has become unavailable, regardless of the Commitment Letters and shall take all actions required on their part under reason therefor, to obtain alternative financing from the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements same or other sources on and subject to substantially the same terms and conditions as that portion which has become unavailable and (E) to satisfy at or prior to the Closing all requirements of any agreements under which such financing is to be provided and conditions to the drawdown of proceeds thereunder. Purchaser agrees that it will use its reasonable best efforts to exercise all of its rights to enforce performance of any agreements under which Purchaser is entitled to receive financing with respect to the transactions contemplated by this Agreement and will not waive, modify or amend any of its rights under such agreements in order to obtain the Financingany material respect.
(b) In Purchaser shall keep Parent informed as to the event that material terms and status of its arrangements with respect to its financing of the transactions contemplated by this Agreement, as reasonably requested by Parent. When preparing any prospectus, registration statement or other marketing or solicitation documents and all other documents to be used by Purchaser in connection with Purchaser's financing of the transactions contemplated by this Agreement (the "Financing Documents"), Purchaser shall consult with the Sellers with respect to any description in the Financing Documents of the Sellers, the Business or the transactions contemplated by this Agreement, and will make reasonable changes to such descriptions as requested by the Sellers. Purchaser will provide drafts of all such Financing Documents to the Sellers and allow the Sellers a reasonable amount of time to review and comment on such documents prior to their circulation to third parties or filing with any Governmental Authority.
(c) For purposes of assisting Parent with the financing contemplated in this Section 5.9, Parent shall provide to Purchaser (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any financial statements of the conditions to Business prepared and audited in accordance with Regulation S-X of the Financing in Securities and Exchange Commission for the Commitment Letters cannot periods that would be satisfied and will not be waived or required under Rule 3-05(b) of Regulation S-X, (ii) Acquiror has agreed to any amendment other historical information and data with respect to the Commitment Letters Transferred Business that establish additional conditions would be required to be included in a registration statement on Form S-1 filed by Purchaser under the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing Securities Act (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination EventForm S-1"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In (iii) in the event all or the Sellers have entered into an agreement with respect to the matters covered by the Draft Settlement Agreement, a correct and complete copy of the executed agreement, and (iv) any portion Transferred Contract that Purchaser would be required to file as an exhibit to a Form S-1. The Sellers shall provide such additional cooperation to Purchaser in connection with the preparation of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it Documents as is amending the Commitment Lettersreasonably requested by Purchaser.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Star Scientific Inc), Asset Purchase Agreement (North Atlantic Trading Co Inc)
Financing. (a) Acquiror Parent shall take, or cause to be taken, all actions, and Acquiror Sub shall comply with do, or cause to be done, all terms things necessary, proper or advisable to obtain funds sufficient to fund the aggregate Cash Consideration and the funds otherwise necessary to effect the consummation of the Commitment Letters transactions contemplated by this Agreement on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, subject to the terms and conditions of this Agreement, Parent shall take use its reasonable best efforts to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on their part under the terms of and conditions (including any “market flex” provisions) described in the Debt Commitment LettersLetter pursuant to the terms thereof, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order using reasonable best efforts to obtain the Financing.
(b) In the event that (i) maintain in effect the Debt Commitment Letter; (ii) negotiate, execute and deliver definitive documentation for the Debt Financing that reflects the terms contained in the Debt Commitment Letter (subject to any Lender “market flex” provisions included in the fee letters or any fee letters relating to an Alternative Debt Financing) or such other terms that are more favorable to Parent; (iii) satisfy (or seek a waiver of) on a timely basis all of the conditions precedent set forth in the Debt Commitment Letter and any definitive document related to the Debt Financing, in each case that are within the control of Parent and comply with their obligations thereunder; and (iv) to seek to enforce its rights with respect to funding under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Without the consent of the Company, Parent shall notify Acquiror not permit any amendment, supplement, replacement or Acquiror Sub that it is withdrawing modification to be made to, or terminating any waiver of any provision under, the Debt Commitment Letters Letter (other than pursuant to “flex” provisions contained in the Debt Commitment Letter) if such amendment, supplement, replacement, modification or that waiver (A) subject to Parent’s right to obtain substitute financing set forth in this Section 7.13, reduces the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount below the amount needed (in combination with all funds held by or otherwise available to Parent and Sub, including the cash on hand of the Company) to consummate the transactions contemplated by this Agreement, or (B) imposes new or additional conditions to the initial funding of the Debt Financing or otherwise expands, amends or modifies any of the conditions to the receipt of the initial Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter, in each case, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, (y) adversely impact the ability of Parent and Sub to consummate the transactions contemplated hereby or (z) adversely impact the ability of Parent to enforce its rights with respect to funding against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent or make less likely the Acceptance Time, Closing or Parent’s ability to consummate the Debt Financing (or satisfaction of the conditions to the Debt Financing)). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, supplement, modification or replacement (including, all such amendments, supplements, modifications or replacements that are permitted hereunder).
(b) Parent shall, and shall cause its Subsidiaries to, use its reasonable best efforts (A) to, subject to Parent’s right to obtain substitute financing set forth in this Section 7.13, maintain in full force and effect the Debt Commitment Letter, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions contained in the Debt Commitment Letters canLetter (including any “market flex” provisions related thereto) or on other terms that are on terms no less favorable, in all material respects to Parent and Sub than the terms and conditions (including any “market flex” provisions related thereto) contained in the Debt Commitment Letter, or, if available, obtain alternative financing on other terms that are acceptable to Parent, provided, that (i) Parent promptly provides notice to the Company of such other terms (in the case of the fee letters, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not be satisfied adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted) or such alternative financing, and (ii) such other terms or the terms of such alternative financing are (x) in respect of certainty of funding, equivalent in all material respects to (or more favorable to Parent, Sub and the Company than) the conditions set forth in the Debt Commitment Letter as in effect on the date hereof and (y) no less beneficial in any material respect to Parent in terms of its ability to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof or the definitive agreements with respect thereto, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not adversely impede the ability of the parties to consummate the Offer or the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. Parent and Sub shall use their reasonable best efforts to enforce their rights with respect to funding under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations with respect to funding under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, including, as the Company’s request, promptly providing copies of all executed definitive agreements for the Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, after obtaining Knowledge thereof (and in any event within two (2) Business Days after obtaining Knowledge thereof), if at any time prior to the Closing Date (i) the Debt Commitment Letter expires or is terminated for any reason, (ii) Parent becomes aware of, or receives any written notice or other written communication from any Person with respect to, any actual or potential material breach, default, termination or repudiation by any party to the Debt Commitment Letter or any Debt Financing Agreement or any provisions of the Debt Commitment Letter or any Debt Financing Agreement, (iii) if for any reason Parent or Sub believes in good faith that it will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Debt Financing required (together with available cash on hand of the Parent, Sub and the Company) for Parent and Sub to pay all of the cash amounts required to be provided by Parent, Sub and the Company for the consummation of the transactions contemplated by this Agreement, (iv) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 7.13(c); provided, however, that in no event will Parent be under any obligation to disclose (x) any ordinary course negotiations with respect to the terms of the Financing and (y) any information shared among Parent and its professional advisors in connection with matters contemplated by this Section 7.13(c) that is subject to attorney-client or similar privilege if Parent shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Parent shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of the Company, take any action or enter into any transaction that could reasonably be expected to impair, delay or prevent consummation of all or any portion of the Debt Financing. Without limiting Parent’s other obligations under this Section 7.13(c), if the commitments with respect to all or any portion of the Debt Financing expire or are terminated or all or any portion of the Debt Financing otherwise becomes unavailable for or it becomes reasonably likely that any reason under portion of the Debt Financing may become unavailable to Parent on the terms and conditions set forth in the Debt Commitment LettersLetter, Acquiror shall use its commercially reasonable efforts to secure all or and such portion of the Debt Financing on terms no less favorable are reasonably required to consummate the Merger and other transactions contemplated hereby, then Parent shall (x) promptly notify the Company of such event and the reasons therefor, (y) use reasonable best efforts to arrange and obtain, at its sole expense, in replacement thereof alternative financing from the same or alternative financing sources in an amount sufficient to pay all amounts required to be paid by Parent and Sub in connection with the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event (the “Alternative Debt Financing”), and (z) obtain, and when obtained, promptly provide the Company with a true, correct and complete copy of each alternative financing commitment in respect of such Alternative Debt Financing (“New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letters, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted). Parent’s obligations under the foregoing sentence in this Section 7.13(c) shall apply to Acquiror than any other Alternative Debt Financing. In the terms event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each fee letter relating to New Debt Commitment Letter to the extent then in effect.
(d) Notwithstanding anything to the contrary contained herein, Parent’s obligations under this Agreement are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Offer, the Merger and the transactions contemplated by this Agreement.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersCompany Credit Agreement, subject to compliance with Section 7.14(a)(x).
Appears in 2 contracts
Samples: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Financing. Acquiror shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to arrange and obtain the Financing on the terms and conditions described in the Commitment Letters (a) Acquiror and Acquiror Sub shall comply with all terms of subject to any flex provisions expressly set forth therein), including maintaining in effect the Commitment Letters and shall take using reasonable best efforts to, as promptly as possible, (i) satisfy (which may include satisfaction by waiver) on a timely basis all actions required on their part under conditions applicable to Acquiror obtaining the Financing set forth therein (including by consummating the Financing pursuant to the terms of the Equity Commitment LettersLetter), (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions) or on other terms in the aggregate not materially less favorable to Acquiror, (iii) timely prepare the necessary offering documents or marketing materials with respect to the Debt Financing, (iv) commence the syndication activities contemplated by the Debt Commitment Letter and (v) consummate the Financing at or prior to Closing. Acquiror shall give Sellers prompt written notice (and in any event no later than three (3) Business Days following the relevant event) (A) of any material breach or default (or any event or circumstance that, with or without limitationnotice, providing lapse of time or both, would reasonably be expected to result in material breach or default) by any party to any Commitment Letter or other Debt Document of which Acquiror obtains knowledge, (B) if and when Acquiror obtains knowledge that any portion of the Lenders Financing contemplated by any Commitment Letter may not be available to consummate the transactions contemplated by this Agreement, (C) of the receipt of any written notice or other written communication from any Person with all respect to any actual or potential material breach or default, termination or repudiation by any party to any Commitment Letter or other Debt Document, (D) if Acquiror reasonably believes in good faith it will not be able to obtain any portion of the Financing on the terms, in the manner and from the sources contemplated by any Commitment Letter (subject to any flex provisions expressly set forth therein) or the definitive agreements with respect thereto (such definitive agreements related to the Debt Financing, collectively, with the Debt Commitment Letter, the “Debt Documents”) and (E) of any termination of any Commitment Letter. Without limiting the obligation to provide such information that they may without request as provided in the immediately preceding sentence, as soon as reasonably practicable, but in any event within two (2) Business Days after the date Sellers deliver Acquiror a written request, Acquiror shall provide any information reasonably requested by Sellers relating to any circumstance referred to in clauses (A) through (D) of the immediately preceding sentence. Without limiting the foregoing, Acquiror shall keep Sellers informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and entering into appropriate loan agreements provide to Sellers executed copies of the Debt Documents (excluding any fee letters, engagement letters or other agreements that, in order to obtain the Financing.
(baccordance with customary practice, are confidential by their terms) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that and copies of any of the conditions to the Financing written notices or communications described in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Eventpreceding sentence. In the event all or If any portion of the Financing becomes unavailable for any reason under on the terms and conditions contemplated in the applicable Commitment LettersLetter (including flex terms) and such portion is reasonably required to fund the Closing Purchase Price and all related fees and expenses required to be paid at the Closing in accordance with, and pursuant to, this Agreement, Acquiror shall shall, without limiting the obligations of Acquiror set forth in the immediately following sentence, use its commercially all reasonable efforts to secure arrange to obtain alternative financing, including from alternative sources, on terms in the aggregate not materially less favorable to Acquiror than the Financing contemplated by the applicable Commitment Letter (after giving effect to the flex provisions expressly set forth therein) (“Alternative Financing”) as promptly as practicable following the occurrence of such event and the provisions of this Section 6.6 and Section 11.14 shall be applicable to the Alternative Financing, and, for the purposes of Section 5.6, this Section 6.6, Section 9.2(c) and Section 11.14, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing and all references to the Lenders shall include the Lenders party to the Alternative Financing. Acquiror shall (1) comply in all material respects with each Debt Document (including paying all fees as they become due thereunder), (2) enforce in all material respects its rights under each Debt Document, and (3) not permit, without the prior written consent of Seller, any material amendment or modification to be made to, or any material waiver of any provision or remedy under, any Debt Document or the fee letter referred to in the Debt Commitment Letter; provided, that no such consent shall be required if such amendment, modification or waiver that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected not to (x) reduce the aggregate amount of the Financing under the Debt Documents (including by changing the amount of fees to be paid or original issue discount thereof) below the sum of the Closing Purchase Price and all related fees and expenses required to be paid at the Closing in accordance with, and pursuant to, this Agreement, after taking into account other sources of funds, including the Equity Commitment Letter and available cash of Acquiror on the Closing Date, or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Financing on terms no in a manner that would reasonably be expected to (I) delay or prevent the Closing Date, (II) make the funding of any portion of the Financing (or satisfaction of any condition to obtaining any portion of the Financing) less favorable likely to occur or (III) adversely impact in any material respect the aggregate ability of Acquiror to enforce its rights against any other party to any Debt Document, the ability of Acquiror than to consummate the terms contained in transactions contemplated hereby or the Commitment Letterslikelihood of the consummation of the transactions contemplated hereby. Acquiror shall immediately notify Holdings if acknowledges and agrees that the obtaining of the Financing, or any Lenders shall notify Acquiror Alternative Financing, is not a condition to Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or Acquiror Sub that it is amending any Alternative Financing, subject to fulfillment or waiver of the Commitment Lettersconditions set forth in Article VIII.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Financing. Buyer shall use commercially reasonable best efforts to cause the financing contemplated by the Capital Plan, subject to the terms and conditions set forth therein, to be available at Closing including by (ai) Acquiror before August 14, 2014, delivering to Seller commercially acceptable commitment letters from lenders representing sufficient financing to fund the full cash portion of the Initial Purchase Price and Acquiror Sub any related fees and expenses (the “Commitments”) (ii) negotiating definitive agreements with the lenders set forth in the Capital Plan consistent with the terms and conditions contained therein and (iii) satisfying on a timely basis all conditions in such definitive agreements the satisfaction of which are within the control of Buyer. Buyer shall use its reasonable best efforts to comply with all terms its obligations, and enforce its rights, under the Commitments. Buyer shall give Seller prompt notice of any material breach by any party to the Commitments of which Buyer has become aware or any termination of such commitments. Buyer shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Commitments if such amendment, modification, waiver or remedy adds new (or adversely modifies existing) conditions to the consummation of the Commitment Letters financing represented thereby or reduces the amount thereof, or (y) terminate the Commitments, unless the financing represented thereby becomes unavailable and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order Buyer is using its reasonable best efforts to obtain the Financing.
Alternate Financing (b) as defined below). In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing Commitments becomes unavailable for any unavailable, regardless of the reason under the Commitment Letterstherefor, Acquiror shall Buyer will (i) use its commercially reasonable best efforts to secure all or such obtain alternative financing (in an amount sufficient to pay the cash portion of the Financing on terms no less favorable Initial Purchase Price) from other sources and which do not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the aggregate Capital Plan (the “Alternate Financing”), and (ii) promptly notify Seller of such unavailability and the reason therefor. Notwithstanding the foregoing, compliance by Buyer with this Section 5.01 shall not relieve Buyer of its obligation to Acquiror than consummate the terms contained in transactions contemplated by this Agreement whether or not the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it financing is amending the Commitment Lettersavailable.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)
Financing. (a) Acquiror Parent and Acquiror Sub the Purchaser shall comply use their commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using commercially reasonable efforts to (a) maintain in effect the Debt Commitment Letter and negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions reflected in the Debt Commitment Letter or on other terms reasonably acceptable to Parent and the Purchaser, (b) satisfy on a timely basis all terms material conditions applicable to Parent and the Purchaser in such definitive agreements that are within their control, (c) consummate the Debt Financing at such time or from time to time as is necessary for Purchaser to satisfy its obligations under this Agreement (d) enforce its rights under the Debt Commitment Letter; provided, however, that Parent or Purchaser shall have the right to substitute alternative financing for the Debt Commitment Letter with a different letter or a letter from alternative lenders so long as such substitute letter is subject to financing conditions that are at least as favorable to Parent and Purchaser as the financing conditions set forth in the Debt Commitment Letter. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letters Letter for any reason, Parent and the Purchaser shall use their commercially reasonable efforts to obtain alternative financing on terms no less favorable to Purchaser than the Debt Financing from alternative sources (“Alternative Financing”) as promptly as practicable following the occurrence of such event. For the avoidance of doubt, Parent’s and the Purchaser’s obligation to consummate the Offer, the Merger and the other transactions contemplated by this Agreement are not (and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order not be) subject to obtain the Financingany financing condition.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating period between the Commitment Letters or that any date of this Agreement and the conditions to Effective Time, upon request of Parent, the Financing in the Commitment Letters cannot be satisfied Company shall, and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion cause its Subsidiaries, and its and their Affiliates and Representatives to, reasonably cooperate with Parent in connection with its financing of the Financing on terms no less favorable transactions contemplated in this Agreement, including using commercially reasonable efforts to (i) participate in meetings and road shows, if any; (ii) provide information reasonably requested by Parent relating to such financing; (iii) assist in the aggregate preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent; and (iv) obtain the consent of, and customary comfort letters from, Ernst & Young, LLP (including by providing customary management letters and requesting legal letters to Acquiror than obtain such consent) if necessary or desirable for Parent’s use of the terms contained Company’s financial statements. Parent shall promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket expenses incurred by the Company or its Affiliates or Representatives in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersconnection with such cooperation.
Appears in 2 contracts
Samples: Merger Agreement (Beckman Coulter Inc), Merger Agreement (Biosite Inc)
Financing. (a) Acquiror Each of Parent and Acquiror Merger Sub shall comply take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Commitment Letter, including to (A) maintain in effect the Commitment Letter, (B) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Financing, (C) negotiate definitive agreements with respect thereto on the terms and conditions contained in the Commitment Letter (including any “flex” provisions), (D) consummate the Financing at or prior to the Closing Date, and (E) enforce their rights under the Commitment Letter in the event of a breach by the Financing Sources of their obligations under the Commitment Letter. In the event that all terms the conditions to the Financing have been satisfied or waived, each of Parent and Merger Sub shall cause the Financing Sources to fund the Financing required to consummate the Transactions at the Closing Date. Parent and Merger Sub shall not permit any material amendment or modification to be made to, or any waiver of any material provision or remedy under, the Commitment Letter or the fee letter referred to in the Commitment Letter without the prior written consent of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment LettersCompany (such consent not to be unreasonably withheld, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements delayed or other agreements in order to obtain the Financingconditioned).
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable on the terms and conditions described in or contemplated by the Commitment Letter for any reason under and such portion is reasonably required to fund the Commitment LettersRequired Amounts, Acquiror each of Parent and Merger Sub shall arrange to obtain, as promptly as practicable following the occurrence of such event but by no later than seven (7) business days prior to the Outside Date, alternative financing from alternative sources (the “Alternative Financing”) in an amount sufficient to pay the Required Amounts. In the event that Alternative Financing shall be obtained pursuant to this Section 6.12(b), each of Parent and Merger Sub shall comply with its covenants in Section 6.12(a) with respect to such Alternative Financing.
(c) The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable best efforts to secure cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, use its reasonable best efforts to provide all cooperation reasonably requested by Parent and/or the Financing Sources in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries), including (i) providing information relating to the Company and its Subsidiaries to Parent and the Financing Sources to be used in the preparation of an information package regarding the business, operations, financial projections and prospects of Parent, the Company and their respective Subsidiaries customary for such financing or reasonably necessary for the completion of the Financing by the Financing Sources, to the extent reasonably requested by Parent to assist Parent in preparation of customary offering or information documents to be used for the completion of the Financing as contemplated by the Commitment Letter (as adjusted by the agreed marketing terms, if any) or the definitive financing agreements, (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case as are reasonably necessary for the completion of the Financing by the Financing Sources, (iii) assisting in Parent’s preparation of documents and materials, including (A) any customary offering documents and bank information memoranda (including public and private versions thereof) for the Financing, and (B) materials for rating agency presentations, in each case as are reasonably necessary for the completion of the Financing by the Financing Sources, (iv) cooperating with Parent’s marketing efforts for the Financing (including consenting to the use of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries as reasonably determined by the Company), (v) provide reasonable assistance in the preparation of and executing and delivering (or using reasonable best efforts to obtain from its advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from their advisors), customary certificates (including a certificate of the principal financial officer of the Company or any Subsidiary with respect to solvency of the Company and the Company Subsidiaries immediately before giving effect to the Merger in substantially the same form as attached to the Commitment Letter), other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Parent as necessary and customary in connection with the Financing, (vi) provide reasonable assistance in connection with Parent’s preparation of and entering into one or more credit agreements, currency or interest hedging agreements, or other agreements; provided that no obligation of the Company or any of its Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, (vii) as promptly as practicable, furnishing Parent and the Financing Sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Financing as contemplated by the Commitment Letter or the definitive financing agreements, (viii) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including participation in due diligence sessions, (ix) using its reasonable best efforts to permit any cash and cash equivalents of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Effective Time, (x) providing authorization letters to the Financing Sources authorizing the distribution of information to prospective Financing Sources and containing, if true, a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its affiliates or securities, (xi) using its reasonable best efforts to ensure that the Financing Sources benefit materially from the existing lending and banking relationships of the Company and its Subsidiaries and that the Financing Sources have the benefit of “clear market” provisions in the Commitment Letter relating to the Company and its Subsidiaries, and (xii) cooperating reasonably with Parent’s Financing Sources’ due diligence and with their efforts to obtain guarantees from the Company and its Subsidiaries and obtain and perfect security interests in the assets of the Company and its Subsidiaries intended to constitute collateral securing such financing, with such cooperation occurring prior to or simultaneously with the Closing, but the execution of any guarantees or security arrangements not taking effect until the Effective Time, in each case, to the extent customary and reasonable; provided that in no event shall the Company or any of its Subsidiaries be required to take any actions that would encumber any of its assets prior to the consummation of the Merger or that would result in a breach of any Company Material Contract or Material Company Lease prior to the consummation of the Merger; and provided, further, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee relating to the Financing or (B) prior to the Effective Time have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the Financing (or Alternative Financing that Parent may raise in connection with the Transactions), other than this Agreement; provided, further, that (I) all non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 6.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information in accordance with the Commitment Letter, and (II) the Company shall be permitted a reasonable period to comment on those portions of the confidential information memoranda circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. Parent acknowledges and agrees that the Company and the Company Subsidiaries shall not incur any liability to any Person prior to the Effective Time in connection with any Financing (or Alternative Financing). The effectiveness of any documentation executed by the Company or any Company Subsidiary shall in all cases be subject to the occurrence of the Effective Time. Parent shall promptly, upon request by the Company, reimburse the Company for all out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of the Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.12(c) and Parent and Merger Sub shall jointly and severally indemnify and hold harmless the Company, the Company Subsidiaries and their respective directors, officers and Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, and penalties suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information used in connection therewith. The foregoing indemnification obligation shall survive the Closing and any termination of this Agreement.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified in accordance with Section 6.12(a), including as a result of obtaining Alternative Financing, or if Parent substitutes Alternative Financing for all or such a portion of the Financing on terms no less favorable as permitted by Section 6.12(b), each of the Company, Parent and Merger Sub shall comply with its covenants in the aggregate this Section 6.12 with respect to Acquiror than the terms contained in the Commitment Letters. Acquiror Letter as so amended, replaced, supplemented or otherwise modified and with respect to such Alternative Financing to the same extent that the Company, Parent and Merger Sub would have been obligated to comply with respect to the Financing.
(e) Parent shall immediately notify Holdings if give the Company prompt written notice of any Lenders shall notify Acquiror material breach by any party to, or Acquiror Sub that it is amending any condition not likely to be satisfied in, the Commitment LettersLetter (or any Alternative Financing obtained in accordance with this Section 6.12) of which Parent becomes aware or any termination (or threat of termination) of the Commitment Letter (or commitments for Alternative Financing obtained in accordance with this Section 6.12). Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange and consummate the Financing (or Alternative Financing). In the event that the Commitment Letter is amended, replaced, supplemented or modified in accordance with this Section 6.12 or Alternative Financing is obtained in accordance with this Section 6.12, Parent shall promptly notify the Company thereof and promptly provide the Company with copies of any definitive agreements related thereto. Parent and Merger Sub acknowledge that obtaining the Financing or any Alternative Financing is not a condition precedent to Parent’s and Merger Sub’s obligations under this Agreement, including Parent’s and Merger Sub’s obligations pursuant to Article I and Article II.
Appears in 2 contracts
Samples: Merger Agreement (Gentiva Health Services Inc), Merger Agreement (Odyssey Healthcare Inc)
Financing. (a) Acquiror and Acquiror Sub Purchaser shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub use commercially reasonable efforts to ensure that it is withdrawing or terminating the conditions described in the Commitment Letters Letter are fulfilled on or before September 30, 2001 and (ii) promptly inform the Company in writing (a "FINANCING NOTICE") if at any time (A) the Commitment Letter ceases to be in full force and effect, (B) Purchaser becomes aware of any fact, occurrence or condition that would cause the Commitment Letter to be terminated or ineffective or any of the conditions therein not to be met, unless Purchaser reasonably believes that any such fact, occurrence or condition may be cured by Purchaser or waived by the Financing in lender thereunder within thirty (30) calendar days of the Commitment Letters cannot be satisfied and will not be waived date on which Purchaser became aware of such fact, occurrence or condition, or (iiC) Acquiror has agreed to any amendment Purchaser believes that the funding pursuant to the Commitment Letters that establish additional conditions to Letter in the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion full amount of the Financing becomes unavailable for any reason under is not likely to occur. Notwithstanding anything to the contrary contained in this Agreement, in the event that Purchaser is able to obtain Financing from a financing source other than pursuant to the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing Letter on terms at least as favorable and no less favorable in more burdensome to the aggregate to Acquiror Company than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending Letter, Purchaser may terminate the Commitment LettersLetter in favor of a new commitment letter and Financing from such new or alternative financing source (a "New Commitment Letter"), provided that Purchaser shall not have the right to terminate the Commitment Letter in favor of a New Commitment Letter if such termination would delay the consummation of the Merger past October 15, 2001. In the event that Purchaser shall terminate the Commitment Letter in favor of a New Commitment Letter, references in this Agreement to the Commitment Letter shall be replaced with references to the New Commitment Letter such that Purchaser's obligations with respect to delivering a Financing Notice shall apply to such New Commitment Letter, and in no event shall the replacement of the Commitment Letter for a New Commitment Letter limit the Company's termination rights in Article X hereof. For the avoidance of doubt, any termination of the Commitment Letter in favor of a New Commitment Letter in accordance with Section 8.13 shall not constitute a breach of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Seracare Inc), Merger Agreement (Grupo Grifols Sa)
Financing. (a) Acquiror Parent shall use its reasonable best efforts to take, or cause to be taken, all actions, and Acquiror Sub shall comply with to do, or cause to be done, all terms of things necessary, proper or advisable to consummate the Financing contemplated by the Commitment Letters and shall take all actions required Letter (or any Substitute Financing) on their part or prior to the Closing Date, including (i) complying with its obligations under the terms of the Commitment LettersLetter, including without limitation, providing the Lenders with all information that they may request (ii) negotiating and entering into appropriate loan definitive agreements with respect to the Financing on the terms and subject to the conditions contemplated by the Commitment Letter (or with other terms and conditions agreed by Parent, the Company and the Financing Sources), including, if necessary, any “market flex” provisions (such definitive agreements, including any such definitive agreements entered into in order connection with any Substitute Financing, the “Financing Agreements”), (iii) satisfying (or, if deemed advisable by Parent, pursuing a waiver of) on a timely basis all the conditions to obtain the FinancingFinancing contemplated by the Commitment Letter and the Financing Agreements, in each case, within the control of Parent, (iv) complying with any “market flex” contemplated by the Commitment Letter (including the fee letter relating thereto) and the Financing Agreements and (v) if the Financing is necessary to consummate the transactions contemplated hereby and pay the Merger Amounts and the conditions set forth in Section 7.1 and Section 7.2 of this Agreement have been satisfied (other than those conditions that by their nature or terms, are to be satisfied at Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions) and the conditions set forth in Exhibit B to the Commitment Letter have been satisfied or upon funding would be satisfied, causing the Financing Sources to fund the Financing in accordance with its terms on the Closing Date in the event the conditions set forth in Section 7.1 and Section 7.2 of this Agreement have been satisfied (other than those conditions that by their nature or terms, are to be satisfied at Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions), and the conditions to the Financing have been satisfied or, upon funding would be satisfied, in each case to the extent the Financing is needed to consummate the transactions contemplated hereby and pay the Merger Amounts.
(b) In Parent shall give the event that Company prompt written notice (i) of, to the Knowledge of Parent, any Lender shall notify Acquiror material breach or Acquiror Sub default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to the Commitment Letter or any Financing Agreements, (ii) of, to the Knowledge of Parent, any withdrawal, repudiation or termination of the Financing by any Financing Sources, (iii) of, to the Knowledge of Parent, any material dispute or disagreement between or among the parties to the Commitment Letter or any Financing Agreements, (iv) of, to the Knowledge of Parent, any material amendment or modification of, or waiver under, the Commitment Letter or (v) if for any reason Parent believes in good faith that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed able to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to timely obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under on the terms, in the manner or from the sources contemplated by the Commitment Letters, Acquiror Letter or any Financing Agreements. Parent shall use keep the Company informed on a reasonably current basis of the status of its commercially reasonable efforts to secure arrange the Financing contemplated by the Commitment Letter, including providing the Company complete, correct and executed copies of (A) any material amendment, waiver or modification of the Commitment Letter (including all exhibits, schedules and annexes thereto) or any commitment letter (including all exhibits, schedules and annexes thereto and fee letters, provided that fee letters may be in redacted form so long as such redaction does not cover terms that would adversely affect the conditionality, availability or termination of the Financing) with respect to any Substitute Financing or Replacement Financing and (B) the Financing Agreements.
(c) Parent shall not agree to any termination, amendment or other modifications to the Commitment Letter without the prior written consent of the Company if such termination, amendment or other modification (i) would reduce the aggregate amount of the Financing below the amount necessary to pay the Merger Amounts or (ii) would impose new or additional conditions or would otherwise modify any conditions or other terms to the Financing in a manner that would be reasonably likely to (A) materially delay or prevent the Closing or (B) make the timely funding of the Financing or satisfaction of the Financing Conditions materially less likely to occur, other than, in each case, (1) a waiver of any closing conditions by any Financing Sources or their agent or (2) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof; provided, that Parent shall have the right to substitute other financing for all or such any portion of the Financing on terms no less favorable from the same or alternative Financing Sources as set forth (and subject to the requirements) in this Section 6.14, without the Company’s prior written consent (except as otherwise required below). Upon any such amendment, modification or substitution (including with any Replacement Financing), the term “Commitment Letter” and “Financing Agreements” shall mean the Commitment Letter or Financing Agreement, as applicable, as so amended or modified; provided, that in the aggregate to Acquiror than event the terms contained in commitments under the Commitment Letters. Acquiror Letter are reduced as a result of or in connection with any Replacement Financing, the term “Financing” shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersbe deemed to include such Replacement Financing.
Appears in 2 contracts
Samples: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
Financing. (a) Acquiror Buyer hereby agrees to work diligently and Acquiror Sub shall comply with in good faith to complete the financing on the terms set forth in the Commitment as further described in Section 4.5. Buyer will duly pay any and all terms commitment and other fees required by, or contemplated in connection with, the Commitment that become due after the date hereof and prior to the Closing. Buyer will keep Seller informed on a reasonably current basis in reasonable detail of the Commitment Letters status of their efforts to arrange the financing and shall take all actions required on their part not permit any material adverse amendment or modification to be made to, or any waiver of provisions governing the principal amount of financing or the conditions to consummation under the terms Commitment without the prior written consent of the Commitment LettersSeller, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) which consent shall not be unreasonably withheld. In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it Buyer is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror unable to obtain the Financing (unless Holdings has agreed financing on the terms set forth in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")the Commitment, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Buyer shall use its commercially reasonable efforts to secure all or such portion of the Financing on obtain alternative financing with overall pricing, cost, timing and maturity terms that are no less favorable, and other terms that are no less favorable in the aggregate any material respect, to Acquiror Buyer than the terms those contained in the Commitment LettersCommitment. Acquiror shall immediately notify Holdings On the terms set forth in Section 5.3(a), Seller hereby agrees to use reasonable efforts to cooperate with Buyer in its efforts to arrange and obtain the financing on the terms set forth in the Commitment, or the alternative financing referenced above, if any Lenders shall notify Acquiror applicable by making its Books and Records and personnel and its auditors and advisors available to Buyer and its lenders upon Buyer's or Acquiror Sub that it is amending such lenders' reasonable request, including by way of participation in meetings with prospective lenders and rating agencies at Buyers or such lender's reasonable request in connection with the syndication of the financing contemplated by the Commitment Lettersor any alternative financing, if applicable.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Dj Orthopedics Inc), Asset Purchase Agreement (Orthologic Corp)
Financing. (a) Acquiror IDB Buyer acknowledges and Acquiror Sub agrees that Seller and its Affiliates and its and their respective Representatives shall comply not have any responsibility for, or incur any liability to any Person under, any financing that IDB Buyer may raise in connection with the transactions contemplated by this Agreement and that IDB Buyer shall indemnify and hold harmless Seller and its Affiliates and its and their respective Representatives from and against any and all terms losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Commitment Letters Debt Financing (including any claims asserted by the Financing Sources) and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all any information that they may request and entering into appropriate loan agreements or other agreements utilized in order to obtain the Financingconnection therewith.
(b) In IDB Buyer shall, and shall cause its Representatives and Affiliates to, take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Debt Financing as soon as reasonably practical after the date of this Agreement, but in any event that prior to the Closing and to obtain the proceeds of the Debt Financing on the terms and conditions, taken as a whole (including the flex provisions) described in the Debt Commitment Letter, including executing and delivering all such documents and instruments as may be reasonably required thereunder, including definitive agreements with respect to the financing on the terms and conditions contained in the Debt Commitment Letter (the "Debt Financing Documents") and:
(i) complying with and maintaining in effect the Debt Financing and the Debt Commitment Letter, negotiating and entering into definitive Debt Financing Documents with respect thereto (and maintaining in effect and complying with the terms thereof) on the terms and conditions (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, any Lender "flex" provisions set forth in the Debt Commitment Letter (including as specified in any Fee Letter provided pursuant to Section 3.11)) no less favorable, taken as a whole, to IDB Buyer than those contained in the Debt Commitment Letter, which agreements shall notify Acquiror be in effect as promptly as practicable after the date hereof, but in no event later than the Closing Date; provided, however, that, without limiting the foregoing, in no event shall any of the Debt Financing Documents (nor shall any amendment, supplement, waiver or Acquiror Sub other modification thereto be reasonably expected to): (A) reduce the aggregate amount of the Debt Financing provided for in the Debt Commitment Letter (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and the payment of all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing); (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Commitment Letter, amend or modify any of such conditions or other contingencies in a manner adverse to IDB Buyer or Seller (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; (C) contain terms (other than those terms expressly set forth in the Debt Commitment Letter that it would reasonably be expected to (1) prevent, impede or delay the consummation of the transactions contemplated by this Agreement or the Debt Commitment Letter or the date on which the Debt Financing would be obtained, or (2) make the funding of Debt Financing less likely to occur; (D) adversely impact the ability of IDB Buyer to enforce its rights against the Financing Sources; or (E) impose obligations on Seller and its Affiliates;
(ii) satisfying, or causing its Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letter and Debt Financing Documents relating thereto (including by paying any commitment, engagement or placement or other fees that become due and payable under or with respect to the Debt Commitment Letter or Debt Financing Documents);
(iii) accepting (and complying with) to the fullest extent all "market flex" provisions contemplated by the Debt Commitment Letter and the Debt Financing Documents;
(iv) obtaining all rating agency approvals necessary to obtain the Debt Financing;
(v) enforcing its rights under the Debt Commitment Letter and Debt Financing Documents in the event of a breach by the Financing Sources under the Debt Commitment Letter and Debt Financing Documents relating thereto; and
(vi) causing the Financing Sources and any other Persons providing Debt Financing to fund the Debt Financing in immediately available funds at the time the Closing is withdrawing required to occur pursuant to the terms and conditions hereof.
(c) IDB Buyer shall not agree to or terminating permit any amendment, supplement or other modification or replacement of, or grant any waiver of any condition, remedy or other provision under, the Debt Commitment Letters Letter or the Debt Financing Documents without the prior written consent of Seller if such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing), from that contemplated by the Debt Commitment Letter delivered as of the date hereof, (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt or funding of the Debt Financing in a manner adverse to Seller or IDB Buyer, (iii) make it less likely that the Debt Financing would be funded (including by making the conditions to obtaining the Debt Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of IDB Buyer to timely consummate the transactions contemplated by this Agreement, (iv) adversely impact the ability of IDB Buyer to enforce its rights against the other parties to the Debt Commitment Letters cannot be satisfied and will not be waived Letter or (iiv) Acquiror has agreed to any amendment otherwise contravene the limitations set forth in Section 5.16(b)(i)(A)-(E). IDB Buyer shall not agree to the withdrawal, repudiation, termination or rescission of the Debt Commitment Letters that establish additional conditions to Letter or Debt Financing Documents or any provision thereof without the Lenders' obligations to provide prior written consent of Seller. Upon any amendment, supplement or modification of the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed Debt Commitment Letter in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"accordance with this Section 5.16(c), then Acquiror IDB Buyer shall immediately notify Holdings of deliver a copy thereof to Seller and references herein to "Debt Commitment Letter" shall include such Funding Termination Event. documents as amended, supplemented or modified in compliance with this Section 5.16(c) and references to "Debt Financing" shall include the financing contemplated by the Debt Commitment Letter as amended, supplemented or modified in compliance with this Section 5.16 and the financing contemplated by the Debt Financing Documents entered into in compliance with this Section 5.16, as applicable.
(d) In the event that all or any portion of the Debt Financing becomes or could become unavailable on the terms and conditions (including any "flex" provisions) or from the sources contemplated in the Debt Commitment Letter or the Debt Financing Documents for any reason under or the Debt Commitment LettersLetter or the Debt Financing Documents shall be withdrawn, Acquiror repudiated, terminated or rescinded for any reason (but without limiting the obligations of IDB Buyer in the penultimate sentence of Section 5.16(c) and in Section 5.16(b)(v) ), (i) IDB Buyer shall use its commercially reasonable efforts immediately so notify Seller and (ii) IDB Buyer shall arrange and obtain, as promptly as practicable following the occurrence of such event (and in any event no later than the Closing Date), and shall negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative sources (the "Alternative Financing") in an amount sufficient to secure consummate the transactions contemplated by this Agreement and pay all related fees and expenses (or such replace any unavailable portion of the Debt Financing), and shall obtain a new financing commitment letter (including any associated engagement letter and related fee letter) with respect to such Alternative Financing (collectively, the "New Debt Commitment Letter"), copies of which shall be promptly provided to Seller. Notwithstanding the foregoing, no New Debt Commitment Letter may expand upon the conditions precedent or contingencies to the funding or receipt of the Debt Financing on terms no less favorable the Closing Date as set forth in the aggregate Debt Commitment Letter in effect on the date hereof or otherwise include terms (including any "flex" provisions) that would reasonably be expected to Acquiror than make the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub likelihood that it is amending the Commitment Letters.such
Appears in 2 contracts
Samples: Purchase Agreement (Jersey Partners Inc.), Purchase Agreement (Jersey Partners Inc.)
Financing. (a) Acquiror Subject to the terms and Acquiror Sub conditions of this Section 6.15, Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Financing as promptly as practicable and in a timely fashion on the terms and conditions described in the Commitment Documents, including using its reasonable best efforts to (a) maintain in effect the commitment for the Financing set forth in the Commitment Documents and comply with all covenants or agreements of Purchaser (and cause its Affiliates to comply with any covenant or agreement of any of its Affiliates) set forth in the Commitment Documents or any definitive documentation relating to the Financing, (b) negotiate and execute definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Documents (including any flex terms in the Commitment Documents) and otherwise on terms acceptable to Purchaser and its Financing Sources, (c) satisfy or obtain a waiver of (and cause its Affiliates to satisfy or obtain such waiver), on a timely basis, all conditions applicable to Purchaser and its Affiliates in such Commitment Documents and the definitive agreements related thereto that are within its or its Affiliates’ control, (d) in the event that all conditions to the commitment of any counterparty to the Commitment Documents providing such Financing have been satisfied (or waived, as applicable), consummate the Financing on or prior to the Closing Date, and (e) use commercially reasonable efforts to cause the lenders and the other Person(s) providing the Financing to fund when required hereunder the Financing required to consummate the Transaction. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under the Commitment Documents (except in compliance with the flex provisions of the fee letters as in effect as of the date hereof), if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount), to an amount below the amount required, together with all other financial resources by Purchaser, to consummate the transactions contemplated hereby on the terms set forth in this Agreement, (ii) amends the existing, or imposes additional, conditions precedent to the Financing, (iii) would reasonably be expected to delay or prevent the Closing Date or make the funding of the Financing less likely to occur, (iv) imposes additional material obligations on Seller, or its Subsidiaries prior to the Closing Date or (v) adversely impact the ability of Purchaser or any of its Affiliates, as applicable, to enforce its rights against the other parties to the Commitment Documents or the definitive agreements with respect to the Financing (the amendments described in the foregoing clauses (i) through (v), “Prohibited Amendments”). Purchaser shall deliver to Seller true and complete copies of any amendment, modification, supplement, consent or waiver to or under any of the Commitment Letters and shall take all actions required on their part under Documents or the definitive agreements relating to the Financing promptly upon execution thereof other than amendments or modifications solely for the purpose of joining additional arrangers or financing sources following the date hereof to the extent effected pursuant to the terms of the Notes Offering Commitment LettersLetter or the Loan Agreement, including without limitationas applicable. Purchaser shall keep Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange, providing and of any material developments concerning the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain timing of, the closing of the Financing.
(b) In the event that . Purchaser shall give Seller notice (i) promptly after obtaining knowledge thereof, of any Lender shall notify Acquiror actual or Acquiror Sub that it is withdrawing likely material breach, violation, default, termination or terminating the Commitment Letters or that repudiation by any party to any of the conditions Commitment Documents or definitive documents related to the Financing, (ii) of its receipt of any written notice from any of its Financing Sources alleging a breach, violation default, termination or repudiation by any party to the Commitment Documents or any definitive document related to the Financing in of any provisions of the Commitment Letters cannot be satisfied Documents or any definitive document related to the Financing, (iii) the occurrence of an event or development that Purchaser expects to have a material and will not be waived adverse impact on the ability of Purchaser to obtain all or any material portion of the Financing contemplated by the Commitment Documents, (iiiv) Acquiror has agreed of any material dispute or disagreement between or among any parties to any amendment of the Commitment Documents or any definitive document relating to the Commitment Letters that establish additional conditions Financing with respect to the Lenders' obligations to provide conditionality or amount of the Financing or otherwise makes it more difficult for Acquiror the obligation to obtain fund the Financing or the amount of the Financing to be funded at the Closing (unless Holdings has agreed but excluding ordinary course negotiations) or (iv) otherwise, if the Financing contemplated by the Commitment Documents becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated therein, in writing that Acquiror can effect whole or in part, for any such amendment) reason (each of the foregoing clauses, a "Funding Termination “Financing Failure Event"”). As soon as reasonably practicable, then Acquiror but in any event within two Business Days of the date Seller delivers to Purchaser a written request, Purchaser shall immediately notify Holdings of such Funding Termination provide to Seller any information reasonably requested by Seller relating to any Financing Failure Event. In the event all or If any portion of the Financing becomes unavailable for on the terms and conditions (including any reason under applicable market flex provisions) contemplated by the Commitment LettersDocuments and alternative financing (so long as the terms thereof are of the type that would not constitute a Prohibited Amendment) is not then made available in an amount equal to such portion, Acquiror and such portion is required to pay the Purchase Price on the terms and conditions contemplated by this Agreement and to pay Purchaser’s fees and expenses related thereto, Purchaser shall promptly notify Seller in writing and Purchaser shall use its commercially reasonable best efforts to secure all or arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions (including market flex provisions) not materially less favorable, taken as a whole, to Purchaser than the terms and conditions set forth in the Commitment Documents, as promptly as practicable following the occurrence of such portion event but no later than the final day of the Financing on terms Marketing Period; provided, that in no event will the reasonable best efforts of Purchaser be deemed or construed to require Purchaser to (A) pay fees materially in excess of those contained in the Commitment Documents (including the market flex provisions) or agree to "market flex" terms, materially less favorable to Purchaser than the corresponding market flex terms contained in or contemplated by the aggregate Commitment Documents or (B) enter into any alternative financing terms the terms of which are materially less favorable to Acquiror Purchaser than the terms contained in the Commitment LettersDocuments on the date hereof (taken as a whole).
(b) Notwithstanding anything contained in this Section 6.15 or in any other provision of this Agreement, in no event shall Purchaser be required to amend or waive any of the terms or conditions hereof.
(c) Subject, in each case, to the rights of the parties to the Commitment Documents under the terms thereof and the definitive documentation with respect to the Financing, none of the parties hereto in their capacities hereunder shall have any rights or claims against any Financing Source in connection with this Agreement, the Commitment Documents, the Financing, the definitive documentation in connection thereto or any of the transactions contemplated thereby, and, without prejudice to the rights of each Financing Source pursuant to the Commitment Documents and the definitive documentation with respect to the Financing, each Financing Source, solely in its capacity as an agent, underwriter, purchaser, lender or arranger, shall not have any rights or claims against any party hereto or any related Person thereof, in connection with this Agreement, whether at law or equity, in contract, in tort or otherwise (other than with respect to enforcing their rights as third party beneficiaries of this Agreement). Acquiror In furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Financing Sources shall immediately notify Holdings if have any Lenders shall notify Acquiror liability for any claims or Acquiror Sub damages to any Seller or any of its Subsidiaries in connection with this Agreement, the Commitment Documents, the Financing or the transactions contemplated hereby or thereby.
(d) Notwithstanding anything in Section 10.10 to the contrary, each of the parties hereto agrees that it is amending will not bring or support any action (whether at law, in equity, in contract, in tort or otherwise) against any Financing Sources or any other Persons that have committed to provide or otherwise entered into agreements in connection with the Financing or other financings in connection with the transactions contemplated hereby in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including any dispute arising out of or in any way relating to the Commitment LettersDocuments or the performance thereof, in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York in the County of New York (and appellate courts thereof). The provisions of this Section 6.15(d) shall be enforceable by each Financing Source, its Affiliates and their respective successors and permitted assigns.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc)
Financing. (a) Acquiror Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (or on terms which would not reasonably be expected to delay or prevent the Closing or make the funding of the Financing less likely to occur) and execute and deliver to the Company a copy thereof concurrently with such execution, (iii) satisfy on a timely basis all conditions in the Commitment Letter and the definitive agreements for the Financing that are within Parent’s control and comply with its obligations thereunder and (iv) enforce its rights under the Commitment Letter in the event of a breach by the Financing Sources that impedes or materially delays Closing, including seeking specific performance of the parties thereunder. In the event that all terms conditions to the Financing Sources’ obligations under the Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall, except where Parent has available to it sufficient funding from any alternative financing, use their reasonable best efforts to cause the Financing Sources to fund on the Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement (including by taking enforcement action, including seeking specific performance, to cause the Financing Sources to fund such Financing). Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letters Letter shall not (A) expand upon the conditions precedent to the Financing as set forth in the Commitment Letter or (B) prevent or impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the obligations of Parent under this Section 6.12 with respect to the Commitment Letter, it is understood and agreed that Parent intends to seek to substitute other financing for the Financing (such as the issuance of the “Notes,” as that term is used in the Commitment Letter) and it is agreed that Parent shall take have the right to substitute other debt or equity financing for all actions required on their part or any portion of the Financing from the same or alternative financing sources. If the Financing under the terms Commitment Letter becomes unavailable in an amount such that Parent and Merger Sub will not be able to satisfy their obligations under this Agreement, Parent shall use its reasonable best efforts to obtain, as promptly as reasonably practicable, alternative financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement. Parent shall give the Company prompt written notice of any material breach by any party to the Commitment Letter or of any condition that would not be satisfied, in each case, of which Parent becomes aware or any termination of the Commitment Letters, including without limitation, providing Letter. Parent shall keep the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order Company informed on a reasonably prompt basis of the status of its efforts to obtain arrange the Financing.
(b) The Company agrees to provide, and shall cause its Subsidiaries, and shall use its reasonable best efforts to cause each of its and their Representatives, including legal, tax and accounting, to provide, at Parent’s sole expense, all reasonable cooperation in connection with the arrangement and obtaining of the Financing or any substitute or alternative financing (collectively with the Financing, the “Definitive Financing”) as may be reasonably requested by written notice provided a reasonable time in advance to the Company by Parent (provided that such requested cooperation does not unreasonably interfere with the business or ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to the Financing Sources or the lenders and other financial institutions and investors that are or may become parties to the Definitive Financing and to any underwriters, initial purchasers and placement agents in connection with the Definitive Financing (the “Definitive Financing Sources”) (including (A) information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Definitive Financing, (B) within 15 days after the end of each month, unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Company and its Subsidiaries, (C) no later that 20 days after the end of each fiscal quarter of Parent, updated forecasts, prepared by management of the Company, of balance sheets, income statements and cash flow statements for each period referenced in Section 2(a)(iii) of the Commitment Letter, and (D) the financial information regarding the Company and its Subsidiaries described in clauses (v) and (vi) of Annex II to the Commitment Letter) to the extent reasonably requested by Parent and/or the Definitive Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Definitive Financing, (ii) cause its senior management and other appropriate employees of the Company to participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Definitive Financing), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, (iii) assist in the preparation of such documents and materials as may be reasonably required in connection with the Definitive Financing, including (A) any customary offering documents, private placement memoranda, bank information memoranda, Form 8-Ks, registration statements, prospectuses and similar documents (including historical and pro forma financial statements and information) for the Definitive Financing, and (B) materials for rating agency presentations, (iv) consent to the use of the Company’s and its Subsidiaries’ logos to the extent customary in connection with marketing the Definitive Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries, (v) execute and deliver (or use reasonable best efforts to obtain from their advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from their advisors), customary certificates (including with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Definitive Financing), legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Definitive Financing as may be reasonably requested by Parent as necessary and customary in connection with the Definitive Financing, (vi) assist in the preparation of and entering into one or more credit agreements and other loan documents, underwriting or note purchase agreements, indentures or other agreements; provided, however, that no obligation of the Company or any of its Subsidiaries under any such agreements or documents shall be effective until the Effective Time, (vii) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including using its reasonable best efforts to provide customary comfort letters to the underwriters in connection with the initial purchase of any securities in connection with the Definitive Financing and to provide customary consents to inclusion of their audit reports in registration statements of Parent, (viii) provide authorization letters to the Definitive Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Definitive Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates, (ix) use its reasonable best efforts to facilitate contact between the Definitive Financing Sources and the principal existing lenders of the Company, (x) cooperate reasonably with the Definitive Financing Sources’ due diligence investigation of the Company and its Subsidiaries, to the extent customary and reasonable and to the extent not unreasonably interfering with the business or operations of the Company, (xi) cooperate with Parent, if requested by Parent, to appoint Parent’s designees to the board of directors or similar governing bodies of the Subsidiaries of the Company, effective as of the Effective Time, for the purpose of taking corporate action related to the Definitive Financing as of the Effective Time, (xii) facilitating the pledging of collateral for the Definitive Financing, including using reasonable best efforts to take actions necessary to permit the Definitive Financing Sources to evaluate the Company’s and its Subsidiaries’ real property and current assets, cash management and accounting systems, policies and procedures for the purpose of establishing collateral arrangements and establishing, as of the Effective Time, bank and other accounts and blocked account agreements and lockbox arrangements in connection with the Definitive Financing, (xiii) using reasonable best efforts to obtain such consents, waivers, estoppels, approvals, authorizations and instruments which may be reasonably requested by Parent or Merger Sub in connection with the Definitive Financing, including customary payoff letters, lien releases, instruments of termination or discharge, legal opinions, appraisals, engineering reports, surveys, title insurance, landlord consents, waivers and access agreements, and (xiv) facilitating the consummation of the Definitive Financing, including cooperating with Parent and Merger Sub to satisfy the conditions precedent to the Definitive Financing to the extent within the control of the Company and its Subsidiaries, and taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent or Merger Sub to permit the consummation of the Definitive Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately upon the Effective Time; provided that (A) none of the Company or any of its Subsidiaries shall be required to pay any fees (including commitment or other similar fees) or incur any other liability or expenses (unless promptly reimbursed by Parent) in connection with the Definitive Financing prior to the Effective Time, (B) nothing herein shall require such cooperation from the Company to the extent it would require the Company to waive or amend any terms of this Agreement and (C) Parent shall be responsible for the timely provision of any post-Closing pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any pro forma financial information to be delivered by the Company pursuant to this Section 6.12. Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket costs and expenses incurred by the Company or its Subsidiaries in connection with such cooperation. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them prior to the Effective Time in connection with the Definitive Financing or the arrangement of the Definitive Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries), except to the extent such losses, damages, claims, costs and expenses result from the gross negligence or willful misconduct of the Company, any of its Subsidiaries or their respective Representatives.
(c) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters Letter is amended, replaced, supplemented or that any otherwise modified, in accordance with Section 6.12(a), or if Parent substitutes other debt or equity financing for all or a portion of the conditions to Financing, each of Parent and the Financing Company shall comply with its covenants in the Commitment Letters cannot be satisfied Sections 6.12(a) and will not be waived or (iib) Acquiror has agreed to any amendment with respect to the Commitment Letters that establish additional conditions Letter as so amended, replaced, supplemented or otherwise modified or with respect to such other substitute financing to the Lenders' obligations same extent that Parent and the Company would have been obligated to provide comply with respect to the Financing Financing.
(d) All non-public or otherwise makes it more difficult for Acquiror to obtain confidential information regarding the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all Company obtained by Parent or its Representatives or any portion other Person pursuant to this Section 6.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such customary and reasonable information to potential syndicate members during syndication, ratings agencies and the like in connection with the Definitive Financing as contemplated by this Section 6.12, subject to customary confidentiality undertakings by such potential syndicate members.
(e) Parent and Merger Sub acknowledge and agree that the obtaining of the Definitive Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts is not a condition to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersClosing.
Appears in 2 contracts
Samples: Merger Agreement (Clearwater Paper Corp), Merger Agreement (Cellu Tissue Holdings, Inc.)
Financing. (a) Acquiror Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with to do, or cause to be done, as promptly as possible, all terms of things necessary, advisable or desirable to (i) satisfy on a timely basis all terms, conditions, representations and warranties applicable to Buyer set forth in the Commitment Letters (including any flex provisions) (or, if deemed advisable by Buyer, seek a waiver of conditions applicable to Buyer contained in the Commitment Letters) (and, for the avoidance of doubt, this clause (i) shall have no effect where the failure to satisfy such terms, conditions, representations and shall take all actions required on warranties results directly from the Sellers’ failure to furnish the Required Information or breach of their part obligations hereunder in a manner that would cause the condition in Section 10.2 not to be satisfied), (ii) maintain in effect the Commitment Letters through the Closing Date (as such may be amended, supplemented, modified and replaced in accordance with the terms hereof), (iii) negotiate and enter into Debt Financing Documents and enforce its rights under the terms Debt Commitment Letters (other than pursuant to any Action taken prior to the satisfaction or waiver of the conditions set forth in Article X and Article XI hereunder) and (iv) upon satisfaction of the conditions set forth in the Commitment Letters, consummate the Financing at the Closing; provided, however, that, if all or any portion of funds in the amounts and on the terms set forth in the Debt Commitment Letters become, or would be reasonably expected to become, unavailable to Buyer on the terms and conditions set forth therein (including without limitationany “flex” provisions related thereto) and such portion is reasonably required to fund the transactions contemplated by this Agreement and all fees, providing expenses and other amounts contemplated to be paid (or caused to be paid) by Buyer pursuant to this Agreement, in each case other than as a result of a breach by Sellers of any representation, warranty or covenant contained in this agreement in a manner that would cause the Lenders with all information that they may request and entering into appropriate loan agreements conditions in Section 10.1 or other agreements in order Section 10.2 not to be satisfied, Buyer shall use its reasonable best efforts to obtain substitute alternative financing (the “Alternative Financing”) for all or such portion of such funds to the extent so unavailable, (i) in amounts and otherwise on terms and conditions no less favorable to Buyer than as set forth in the applicable Debt Commitment Letter and (ii) that does not expand upon the conditions precedent or contingencies to funding the Financing on the Closing Date as set forth in the applicable Debt Commitment Letter or Debt Financing Documents with respect to the Alternative Financing; provided, further, that, if Buyer proceeds with Alternative Financing, it shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 8.5 as with respect to the Debt Financing. For the avoidance of doubt, references to the “Debt Commitment Letter” shall include such document as permitted or required by this Section 8.5 for such Alternative Financing from the time of such substitution.
(b) In the event that Buyer shall provide prompt written notice of (i) any Lender shall notify Acquiror material breach or Acquiror Sub that it is withdrawing default (or terminating the Commitment Letters any event or that any circumstance that, with or without notice, lapse of the conditions time or both, would reasonably be expected to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed give rise to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing material breach or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendmentdefault) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason by Buyer under the Commitment Letters, Acquiror shall use its commercially reasonable efforts or to secure all the knowledge of Buyer, any other party to the Commitment Letters or such portion definitive agreement related thereto and (ii) receipt by Buyer of any written notice or other written communication from any party to the Commitment Letters with respect to any actual or threatened material breach, default, termination or repudiation by any party to the Commitment Letters or any definitive agreement related thereto or any provision of the Financing on terms no less favorable or any definitive agreement related thereto (including any proposal by any Financing Source to withdraw, terminate, reduce the amount of financing necessary to consummate the transactions contemplated hereby or materially delay the timing of the financing contemplated by Commitment Letters). Buyer shall not consent to (i) any replacement, amendment or waiver of any provision or remedy under any Commitment Letter (including, for the avoidance of doubt, any provision of any fee letter or engagement letter related thereto) without Sellers’ prior written consent if such replacement, amendment or waiver (A) reduces the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount thereof, unless, in the aggregate case of the Debt Commitment Letters, any such change is matched from Alternative Financing to Acquiror than the extent required or permitted pursuant to Section 8.5(a)), unless such portion is not reasonably required to fund the transactions contemplated by this Agreement or (B) imposes new or additional conditions precedent or changes the conditions precedent to the Financing or otherwise changes the terms contained of the Financing, in each case, in a manner that would reasonably be expected to delay in any material respect or prevent the Closing or make the funding of the Financing materially less likely to occur or adversely impact in any material respect Buyer’s ability to enforce its rights under any such Commitment Letter or to consummate the transactions contemplated hereby (for the avoidance of doubt, it is understood that, subject to the limitations set forth in this Section 8.5, Buyer may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities, but if and only if the addition of such additional parties, individually or in the aggregate, and together with any amendments or modifications to such Debt Commitment LettersLetter in connection therewith, would not result in the occurrence of a modification to such Commitment Letter prohibited by this clause (i)) and (ii) termination of such Commitment Letter prior to the Closing Date (unless, in the case of the Debt Commitment Letter, Buyer has arranged for Alternative Financing to the extent permitted or required by Section 8.5(a)). Acquiror Buyer shall immediately notify Holdings if provide to Sellers copies of any Lenders commitment letter associated with a replacement Financing or Alternative Financing as well as any amendment or waiver of any Commitment Letter. For the avoidance of doubt, references to “Commitment Letter” shall notify Acquiror or Acquiror Sub that it include as such Commitment Letter is amending modified in accordance with this Section 8.5(b) from the Commitment Letterstime of such modification.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Financing. (a) Acquiror and Acquiror Sub Assignee shall comply with all terms of the Commitment Letters and shall take use its reasonable best efforts to take, or cause to be taken, all actions required and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange, obtain, and consummate the Debt Financing on their part under the terms of and conditions described in the Debt Commitment Letters, including without limitation, providing Letter on or prior to the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that Closing Date. Such actions shall include (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating maintaining in full force and effect the Debt Commitment Letters or that any Letter in the form provided to Assignor concurrently with the execution of this Agreement, (ii) satisfying on a timely basis all of the conditions precedent and covenants to the Debt Financing in the Commitment Letters cannot applicable to Assignee that are to be satisfied by Assignee, (iii) negotiating, executing, and will not be waived or delivering definitive documents (ii“Debt Financing Documents”) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than reflect the terms contained in the Debt Commitment LettersLetter (including, as necessary, agreeing to any requested changes to the commitments thereunder in accordance with any “flex” provisions contained in the Debt Commitment Letter or any related fee letter), in each case which terms shall not in any respect materially expand on the conditions to the funding of the Debt Financing Proceeds at the Closing or reduce the aggregate amount of the Debt Financing Proceeds available to be funded on the Closing Date, (iv) promptly commencing the syndication activities contemplated by the Debt Commitment Letter, if any, (v) drawing the full amount of the Debt Financing Proceeds, and (vi) fully enforcing its rights under the Debt Commitment Letter and the Debt Financing Documents in order to consummate the Debt Financing at or prior to the Closing. Acquiror Assignee shall immediately notify Holdings not, and shall not permit any of its Affiliates or representatives to, without the prior written consent of Assignor, take or fail to take any action or enter into any transaction that could reasonably be expected to materially impair, delay or prevent the consummation of the Debt Financing contemplated by the Debt Commitment Letter except as waived by lender. Assignee shall comply with all of its obligations under each of the Debt Financing Documents. Assignee shall not permit or consent to (i) any amendment, supplement or modification to be made to the Debt Commitment Letter if such amendment, supplement or modification would materially (a) change, expand or impose new conditions precedent to the funding of the Debt Financing Proceeds from those set forth therein on the date hereof; (b) change the timing of the funding of the Debt Financing Proceeds thereunder or reasonably be expected to impair, delay or prevent the availability of all or a portion of the Debt Financing Proceeds or the consummation of the transactions contemplated by this Agreement; (c) reduce the aggregate cash amount of the Debt Financing Proceeds (including by changing the amount of fees to be paid or original issue discount of the Debt Financing (except as set forth in any Lenders “flex” provisions existing on the date hereof)); or (d) otherwise adversely affect the ability of Assignee to consummate the transactions contemplated by this Agreement or the timing of the Closing; (ii) any waiver of any provision or remedy under the Debt Commitment Letter (other than a condition to funding in favor of the lenders thereunder); or (z) early termination of the Debt Commitment Letter. Notwithstanding the foregoing, in no event shall notify Acquiror the failure of Assignee to obtain all or Acquiror Sub that it is amending any part of the Commitment LettersDebt Financing Proceeds prior to or on the Closing Date shall be permitted to delay or impair the Closing.
Appears in 2 contracts
Samples: Assignment and Assumption Agreement, Assignment and Assumption Agreement (Sequential Brands Group, Inc.)
Financing. (a) Acquiror Buyers shall use their reasonable best efforts to (x) maintain in effect the Financing Commitments and Acquiror Sub shall comply to satisfy the conditions to obtaining the Financing set forth therein (including, without limitation, by funding the equity contemplated by the Equity Financing Commitment), (y) enter into definitive financing agreements with all terms respect to the Debt Financing (the "Debt Financing Agreement") so that the Debt Financing Agreement is in effect as soon as reasonably practicable but in any event no later than the Closing Date and (z) consummate the Financing at or prior to Closing. Subject to the satisfaction or waiver of the Commitment Letters and conditions to Closing in Article V of this Agreement, Buyers agree to use the bridge facility contemplated by the Financing Commitments to cause the Closing to occur effective as of no later than October 31, 2004. Buyers shall take all actions required on their part under the terms keep IR reasonably informed of the Commitment Lettersstatus of the financing process relating thereto. IR shall cause the Sellers and its and their respective officers and employees to provide such cooperation as may be reasonably requested by Buyers in connection with the Debt Financing and any offering of debt securities privately or in a registered offering, including in connection with the preparation of "bank books", offering materials and similar documents and all other necessary cooperation in connection with the arrangement of any financing to be consummated contemporaneous with or at or after the Closing in respect of the transactions contemplated by this Agreement, including without limitation, providing participation in good faith in meetings, due diligence sessions, road shows, the Lenders with all information that they may request and entering into appropriate loan agreements preparation of offering memoranda, registration statements or other agreements appropriate disclosure documents and the execution and delivery of underwriting, placement or similar agreements, whose effectiveness shall be conditioned on the closing of the transactions contemplated by this Agreement. If necessary in order connection with the Debt Financing, in the event that Closing has not occurred due solely to obtain the Financingfailure of one or more of the conditions to Closing in Article V to be satisfied or capable of being satisfied, and the Debt Financing shall not have been consummated, by November 9, 2004, IR shall provide to the Buyers on or prior to such date with an unaudited balance sheet of the Dresser-Rand Group and the Business as of September 30, 2004 and the related unaudited statements of income and cash flows for the nine-month period ended September 30, 2004 (the "September Financial Statements").
(b) In As reasonably requested by Buyers and necessary to the event consummation of the Debt Financing, IR shall use commercially reasonable efforts to (i) to ensure that PWC will conduct a review of the Six-Month Financial Statements and the September Financial Statements, as the case may be, in accordance with SAS 100, and in a manner reasonably satisfactory to IR (the "SAS 100 Review") as soon as practicable following the delivery thereof, (ii) cooperate and assist Buyers in the preparation of data (including selected financial data and management discussion and analysis of financial statements) that the Securities and Exchange Commission would require in a registered offering in connection with the offering of securities of the type contemplated by the Debt Financing, (iii) obtain from PricewaterhouseCoopers LLP "comfort" letters and updates thereof in customary form and covering the matters of the type customarily covered in "comfort" letters in connection with offerings of securities of the type contemplated by the Debt Financing and (iv) provide Buyers with documents reasonably requested by Buyers in order for Buyers to obtain title insurance and a current survey with respect to material Owned Real Property. All reasonable out-of-pocket costs and expenses incurred by IR or Sellers (including, without limitation, the fees and expenses of Sellers' accountants, which shall be paid directly by Buyers) pursuant to this paragraph and in connection with any other Debt Financing matters shall be borne by Buyers, and shall be paid by Buyers to the party incurring such costs and expenses at least one (1) business day prior to the Closing so long as such party has provided reasonable documentation for such expenses at least five (5) days prior to the Closing.
(c) If, notwithstanding the use of reasonable best efforts by Buyers to satisfy its obligations under Section 6.19(a) and (b), any of the Financing Commitments or the Debt Financing Agreement expire or are terminated prior to the Closing, in whole or in part, for any reason, Buyers shall (i) promptly notify IR of such expiration or termination and the reasons therefor and (ii) use its reasonable efforts promptly to arrange for alternative financing to replace the financing contemplated by such expired or terminated commitments or agreements, sufficient to consummate the transactions contemplated by this Agreement. The Buyers shall keep IR reasonably apprised of the status of all matters relating to the Financing and shall give IR prompt written notice of (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that material breach by any party of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived Commitments (or any definitive agreements entered into pursuant thereto) or (ii) Acquiror has agreed to any amendment condition to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect funding under any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings Financing Commitment becoming incapable of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersbeing satisfied.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Dresser-Rand Group Inc.), Equity Purchase Agreement (Ingersoll Rand Co LTD)
Financing. (a) Acquiror The Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions, in all material respects, described in the Debt Commitment Letter, including using its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter, (ii) negotiate definitive agreements with respect to the Financing on terms and conditions, in all material respects, contemplated by the Debt Commitment Letter and execute and deliver to the Company a copy thereof concurrently with such execution, (iii) satisfy on a timely basis all conditions applicable to the Buyer in the Debt Commitment Letter that are within its control and comply with all terms its obligations thereunder, (iv) enforce its rights under the Debt Commitment Letter in the event of a breach by the lenders or the other persons providing such Financing that would reasonably be expected to prevent, impede or delay the Closing, including seeking specific performance of the lenders or the other persons providing such Financing thereunder. In the event that all conditions to the Debt Commitment Letters Letter have been satisfied or, upon funding, will be satisfied, the Buyer shall use its reasonable best efforts to cause the lenders and the other persons providing such Financing to fund on the Closing Date the Financing (including by seeking specific performance to cause such lenders and the other persons who have committed to provide such Financing to fund such Financing). The Buyer shall take have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Debt Commitment Letter and/or substitute other debt or equity financing for all actions required on their part or any portion of the Financing from the same and/or alternative financing sources; provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing (each, an “Alternative Financing”) shall not (A) expand upon the conditions precedent or contingencies to the Financing as set forth in the Debt Commitment Letter in any material way or (B) prevent, impede or delay, in any material respect, the consummation of the Merger and the other transactions contemplated by this Agreement. The Buyer shall be permitted to reduce the amount of the Financing under the terms Debt Commitment Letter in its reasonable discretion; provided that the Buyer shall not reduce the Financing to an amount committed below the amount that is required to pay, together with other financial resources of the Commitment LettersBuyer, including without limitationcash on hand on the Closing Date, providing the Lenders Aggregate Merger Consideration and to make all other necessary payments by the Buyer in connection with the Acquisition, including the payment of all information fees and expenses reasonably expected to be incurred by the Buyer in connection with the transactions contemplated by this Agreement (the “Required Financing Amount”), and provided further that they may request such reduction shall not (x) expand upon the conditions precedent or contingencies to the Financing as set forth in the Debt Commitment Letter in any material way or (y) prevent or impede or delay, in any material respect, the consummation of the Acquisition and entering into appropriate loan agreements the other transactions contemplated by this Agreement. If any portion of the Financing becomes unavailable or other agreements the Buyer becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in order each case, according to the material terms and conditions contemplated in the Debt Commitment Letter and such portion is reasonably required to fund the Aggregate Merger Consideration, the Buyer shall use its reasonable best efforts to arrange and obtain one or more Alternative Financings in an amount greater than or equal to the Required Financing Amount as promptly as practicable following the occurrence of such event. The Buyer shall give the Company prompt oral and written notice (but in any event not later than two (2) Business Days after the occurrence) of any material breach by any party to the Debt Commitment Letter or of any material condition not likely to be satisfied, in each case, of which the Buyer becomes aware, or any termination of the Debt Commitment Letter. The Buyer shall keep the Company reasonably informed in all material respects of the status of its efforts to arrange the Financing.
(b) In The Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cooperate with reasonable requests by the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions Buyer in its efforts to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide consummate the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersAlternative Financing.
Appears in 2 contracts
Samples: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms The Members acknowledge that as of the Commitment Letters date hereof the Properties are subject to the Existing Loans. The Administrative Member shall, subject to the provisions of this Agreement, including Section 4.5(a)(2) hereof, cause the Company and shall take the Property Owners to comply in all actions required on their part under respects with the terms and provisions of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the FinancingExisting Loans.
(b) Notwithstanding any other provision of this Agreement to the contrary, the Blackstone Member shall have the unilateral and exclusive right, in its sole and absolute discretion, during the period in which voluntary prepayment is permitted under any Indebtedness and on or following the maturity of the Existing Loan or any other Indebtedness with respect to each Property, to cause the Company and/or the Property Owners to obtain one or more loans (any such loan and any amendment, extension, restatement, modification, restructuring and refinancing thereof shall be referred to as a “Financing”) which may be secured by one or more mortgage liens on the Properties and/or pledges of ownership interests in the Property Owners, provided that such Financing shall be a Qualified Financing; provided that the Blackstone Member shall only have the right to cause a voluntary prepayment of the Existing Loans prior to maturity thereof if no penalty, premium or defeasance costs are payable in connection with such prepayment. The Members agree that they and their respective Affiliates as required by the Lender of a Financing shall promptly provide such Lender with all information in its possession or readily obtainable relating to the Properties, the Company and the Members which is reasonably requested by such Lender in connection with a Financing.
(c) In connection with the closing of any Financing, GPLP shall be required to provide in favor of the Lender thereof any required (i) guaranty of customary non-recourse carveouts and (ii) environmental indemnity (collectively, the “Glimcher Future Financing Guaranties”) in each case in such form and substance as is required by such Lender. In connection with the Glimcher Financing Guaranties, the Glimcher Member shall provide to such Lender all information in its possession or readily available with respect to the financial condition of the Glimcher Member which is requested by the Lender in connection with such Financing. As used herein, the term “Glimcher Financing Guaranties” shall mean (1) any Glimcher Future Financing Guaranties, and (2) the existing guaranty of recourse obligations executed by GPLP with respect to each Existing Loan. Notwithstanding the foregoing, in the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any as of the conditions closing of a Financing relating to any Property, the Financing in Property Management Agreement for such Property has been terminated and no Affiliate of the Commitment Letters canGlimcher Member is then the property manager with respect to such Property, GPLP shall not be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations required to provide the any Glimcher Future Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed Guaranty in writing that Acquiror can effect any connection with such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersFinancing.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Glimcher Realty Trust), Purchase and Sale Agreement (Glimcher Realty Trust)
Financing. (a) Acquiror Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Financing on the terms of and conditions described in the Commitment Letters Letter, including using reasonable best efforts to (x) satisfy on a timely basis all terms, covenants and shall take all actions required conditions set forth in the Commitment Letter; (y) enter into definitive agreements with respect thereto on their part under the terms of and conditions contemplated by the Commitment LettersLetter; and (z) consummate the Financing at or prior to Closing. Buyer will
(1) promptly furnish to Seller correct and complete copies of draft and executed versions of all such definitive agreements; provided, including however, that such copies may have their economic terms redacted, and (2) use reasonable best efforts to provide Seller and its Representatives with reasonable access, upon Seller’s request, to Buyer’s financing sources. Buyer shall not amend or alter, or agree to amend or alter, the Commitment Letter in any manner that would prevent or materially impair or delay the consummation of Transactions without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financingprior written consent of Seller.
(b) In Buyer shall keep Seller informed with respect to all material activity concerning the status of the Financing contemplated by the Commitment Letter and shall give Seller prompt notice of any material adverse change with respect to such Financing. Without limiting the foregoing, Buyer agrees to notify Seller promptly, and in any event that within two (2) Business Days, if at any time (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters Letter shall expire or that be terminated for any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or reason, (ii) Acquiror has agreed to any amendment financing source that is a party to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed Letter notifies Buyer in writing that Acquiror can effect such source no longer intends to provide financing to Buyer on the terms set forth therein, or (iii) for any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event reason Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Financing becomes unavailable for any reason under contemplated by the Commitment LettersLetter on the terms described therein. Buyer shall not, Acquiror and shall use not permit any of its commercially reasonable efforts Affiliates to, without the prior written consent of Seller, take or fail to secure all take any action or such enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any New Commitment Letter contemplated by any Alternate Financing referred to in Section 6.08(c).
(c) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter or the Commitment Letter shall be terminated or modified in a manner materially adverse to Buyer for any reason, Buyer shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions (“Alternate Financing”) and to obtain, and, if obtained, will provide Seller with a copy of, a new financing commitment letter that provides for at least the same amount of financing as such Commitment Letter as originally issued, to the extent needed to fund the Purchase Price, and the Commitment Letter (the “New Commitment Letter”), in each case, on terms and conditions (including termination rights and funding conditions) no less favorable to Buyer than those included in the aggregate Financing and the Commitment Letter. To the extent applicable, Buyer shall use its reasonable best efforts to Acquiror than take, or cause to be taken, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms contained and conditions described in any New Commitment Letter, including using reasonable best efforts to (x) satisfy on a timely basis all terms, covenants and conditions set forth in the New Commitment LettersLetter; (y) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the New Commitment Letter; and (z) consummate the Alternate Financing at or prior to the Closing. Acquiror In the event Alternate Financing is obtained and a New Commitment Letter is entered into, references in this Agreement to the Commitment Letter shall immediately notify Holdings if be deemed to refer to the New Commitment Letter, as applicable.
(d) Prior to the Closing, Seller shall, and shall cause its Affiliates, the Acushnet Companies and their respective directors, officers, employees, advisors, representatives or Affiliates to, at Buyer’s cost and expense, provide to the Buyer all cooperation reasonably requested by the Buyer in connection with obtaining the Financing or the Alternative Financing, as applicable; provided, however, that such cooperation does not materially interfere with the conduct or operation of the businesses of the Acushnet Companies; provided, that none of Seller, its Affiliates or their respective directors, officers, employees, advisors, representatives or Affiliates or the Acushnet Companies (prior to Closing) shall be required to pay any Lenders commitment or other fee, provide any security or incur any other Liability in connection with the Financing or the Alternative Financing. Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller, its Affiliates, the Acushnet Companies and their respective directors, officers, employees, advisors, representatives or Affiliates (including reasonable attorneys’ fees and costs) in connection with such cooperation. Buyer shall notify Acquiror indemnify and hold harmless Seller, its Affiliates, the Acushnet Companies and their respective directors, officers, employees, advisors, representatives or Acquiror Sub that Affiliates from and against any and all Damages suffered or incurred by any of them in connection with the arrangement of the Financing or the Alternative Financing, except to the extent it is amending judicially determined by a court of competent jurisdiction such Damages were caused by the Commitment Lettersgross negligence or intentional misconduct of Seller, its Affiliates, the Acushnet Companies and their respective directors, officers, employees, advisors, representatives or Affiliates.
Appears in 1 contract
Financing. (a) Acquiror Subject to the terms and Acquiror Sub conditions set forth herein, prior to the Closing, Buyer Parent shall comply take or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions set forth in the applicable Financing Commitments not later than the date that the Closing is required to occur in accordance with Section 2.2, including: (i) maintaining in full force and effect the Financing Commitments; (ii) satisfying all terms conditions applicable to Buyer Parent and in the case of the Debt Commitment Letters and shall take all actions required Letter, Buyer, in the Financing Commitments that are within their control; (iii) complying on a timely basis with their part obligations under the terms Financing Commitments; (iv) consummating the Financing at or prior to the date that the Closing is required to occur in accordance with Section 2.2; and (v) enforcing their rights under the Financing Commitments. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 5.13 will require, and in no event will Buyer Parent be required to seek the Financing from any source other than a counterparty to, or in any amount in excess of that contemplated by, the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the FinancingFinancing Commitments.
(b) In Buyer Parent shall not, without the event that prior written consent of Seller (i) which consent shall not be unreasonably withheld, conditioned or delayed), permit any Lender shall notify Acquiror amendment or Acquiror Sub that it is withdrawing modification to be made to or terminating the Commitment Letters or that waiver of any of the conditions to rights under the Financing in Commitments, and, upon the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion consummation of the Financing becomes unavailable for any reason to Buyer Parent or, in the case of the Debt Commitment Letter, Buyer, in accordance with the Financing Commitments, Buyer Parent shall draw down at Closing such amount of such Financing as is required to fully make the payments pursuant to Article II. Buyer Parent shall not permit Buyer to release or consent to the termination of the obligations of AAIA or Reinsurer under the Debt Commitment Letters, Acquiror Letter without Seller’s prior written consent.
(c) Buyer Parent shall use provide Seller with prompt written notice of the receipt of any notice or other communication from AAIA or Reinsurer with respect to its commercially reasonable failure or anticipated failure to fund its commitments under any Financing Commitment. Buyer Parent shall keep Seller reasonably informed on a current basis of the status of its efforts to secure all or such portion of consummate the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersFinancing.
Appears in 1 contract
Samples: Master Transaction Agreement (Voya Financial, Inc.)
Financing. (a) Acquiror and Acquiror Sub Buyer shall comply with all terms of the Commitment Letters and shall take take, or cause to be taken, all actions required and do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on their part under the terms of and conditions described in the Commitment LettersCredit Facility, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) maintaining in effect the Credit Facility and, as applicable, any Lender shall notify Acquiror Supplemental Facility without amendment after the date hereof, (ii) negotiating, executing and delivering all documents required under the Credit Facility and, as applicable, any Supplemental Facility to borrow under the Credit Facility and, as applicable, any Supplemental Facility to receive the Financing or Acquiror Sub that it is withdrawing or terminating otherwise required with respect to the Commitment Letters or that any of transactions contemplated hereby and by the Ancillary Agreements, (iii) satisfying on a timely basis all conditions applicable to the Financing in the Commitment Letters cannot be satisfied Credit Facility and, as applicable, any Supplemental Facility that are within the control of Buyer and will not be waived comply with its obligations under the Credit Facility and, as applicable, any Supplemental Facility, (iv) consummating the Financing at or (ii) Acquiror has agreed to any amendment prior to the Commitment Letters Closing, (v) ensuring sufficient availability thereunder such that, when taken together with cash on hand, at Closing and without delay for such availability, the Financing is sufficient to fulfill Buyer’s obligations under this Agreement and the Ancillary Agreements, and (vi) enforcing its rights under the Credit Facility and, as applicable, any Supplemental Facility in the event of a breach by the financing sources that establish additional conditions impedes or delays the Closing, including seeking specific performance of the parties thereunder. Buyer shall use its reasonable best efforts to cause the lenders and the other Persons providing such Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement and the Ancillary Agreements (including, notwithstanding anything to the Lenders' obligations contrary in Section 7.1 of this Agreement, by taking enforcement action, including seeking specific performance, to provide cause such lenders and the other Persons providing such Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any fund such amendment) (each a "Funding Termination Event"Financing), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or If any portion of the Financing becomes unavailable for or Buyer becomes aware of any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all event or such circumstance that makes any portion of the Financing unavailable, in each case, on the terms no less favorable and conditions contemplated in the aggregate Credit Facility and, as applicable, any Supplemental Facility and such portion is reasonably required to Acquiror consummate the transactions contemplated by this Agreement and the Ancillary Agreements, Buyer shall use its reasonable best efforts to arrange and obtain alternative debt financing from the same and/or alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided that, without limiting the provisions set forth at all times on and after the date of this Agreement, Buyer shall maintain, solely for use for its obligations under this Agreement, available borrowings under its Credit Facility in an amount not less than $250,000,000. Buyer shall give Seller prompt oral and written notice (but in any event not later than one (1) Business Day after the occurrence) of (x) any material breach by any party to the Credit Facility or, as applicable, any Supplemental Facility, (y) any condition not likely to be satisfied or (z) any termination of the Credit Facility or, as applicable, any Supplemental Facility or any obligations to fund thereunder.
(b) As promptly as possible after the date hereof, but in no event later than the terms contained date (the “FCN Deadline Date”) that is the earlier of (x) one Business Day after Buyer or any of its Subsidiaries raises debt or equity financing in an amount of not less than $100,000,000 and (y) the Bid Deadline Date (as defined in the Commitment LettersBid Procedures Order), Buyer shall deliver written notice to Seller, certified by a senior executive officer on behalf of Buyer and in form and substance reasonably satisfactory to Seller, (i) representing and warranting (without qualification or limitation) to Seller for purposes of Seller’s reliance that Buyer has cash on hand and/or available borrowings under the Credit Facility and, as applicable, any Supplemental Facility to consummate the transactions contemplated by this Agreement and the Ancillary Agreements (including the Main Line Fill Purchase Agreement and the Spur Line Fill Purchase Agreement), (ii) covenanting and agreeing with Seller that, at all times on and after the date of such notice, Buyer shall maintain, solely for use for its obligations under this Agreement, cash on hand and/or available borrowings under its Credit Facility and, as applicable, any Supplemental Facility in an amount not less than that needed to fulfill its obligations under this Agreement and the Ancillary Agreements at the Closing and thereafter, (iii) to the extent applicable, making the representations, warranties, and covenants required by the definition of Supplemental Facility and (iv) agreeing for the benefit of Seller that such representations, warranties and covenants are, respectively, representations, warranties and covenants of Buyer made in, under and pursuant to this Agreement on which Buyer may rely (a written notice meeting all of such conditions, the “Funds Certification Notice”). Acquiror Without limiting or amending any other rights or remedies to which Seller may be entitled as a result thereof or arising therefrom, in the event that a Funds Certification Notice is not delivered by Buyer to Seller on or prior to the FCN Deadline Date, Seller or an Affiliate thereof may, in its sole discretion, as a non-exclusive remedy, by written notice to Buyer (a “Line Fill Termination Notice”), elect to terminate the obligations of the parties under this Agreement to deliver, or cause an Affiliate to deliver, the Main Line Fill Purchase Agreement and the Spur Line Purchase Agreement at the Closing.
(c) In the event that Seller or an Affiliate elects to deliver the Line Fill Termination Notice, (v) effective immediately upon such delivery, automatically and without further action on the part of any Party hereto, (A) Sections 3.2(a)(i), 3.2(a)(ii), 3.3(c)(i) and 3.3(c)(ii) of this Agreement shall be amended and restated as “Intentionally Omitted”, (B) the following shall be deleted from the definition of “Ancillary Agreements”: “, including but not limited to the Main Line Fill Purchase Agreement and the Spur Line Fill Purchase Agreement”, and (C) the following shall be deleted from the definition of “Main Line Fill”: “and as more fully set forth in the Main Line Fill Purchase Agreement”, (w) after giving effect to the amendments described in the immediately notify Holdings if foregoing clause (v), the respective rights and obligations of the parties under this Agreement shall remain in full force and effect without delay, (x) Seller shall have the right at any Lenders time either prior to or after the Closing, to, or to permit an Affiliate or third party on its behalf to, remove the Main Line Fill and the Spur Line Fill from the Pipeline System at the sole cost and expense of Buyer (whether incurred prior to or after the Closing) and Buyer shall notify Acquiror fully cooperate with and assist Seller and its Affiliates, as Seller or Acquiror Sub any Affiliate requests, in the removal, sale to a third party of, or any financing involving the Main Line Fill and the Spur Line Fill, (y) Seller shall not be deemed to be in breach of any representation, warranty, covenant or agreement under this Agreement as a result of delivery of the Line Fill Termination Notice and (z) Buyer shall indemnify Seller and its Affiliates for all Losses (without limitation by Section 15.17 of this Agreement) suffered by Seller or any of its Affiliates arising from or related to failure of Buyer to purchase the Main Line Fill and the Spur Line Fill when required pursuant to this Agreement (determined without regard to the Line Fill Termination Notice and the amendments affected thereby).
(d) In no event shall this Section 7.10 be deemed to amend or modify any representations, warranties or other covenants of Buyer under this Agreement or any of the Ancillary Agreements or be construed that receipt of the Financing is a condition to Buyer’s obligations under this Agreement (it is amending being understood and agreed that, for all purposes of this Agreement, failure of Buyer to deliver the Commitment LettersPurchase Price and, unless a Linefill Termination Notice has been delivered by Seller to Buyer prior to such time, the purchase price required under the Main Line Fill Purchase Agreement and the Spur Line Fill Purchase Agreement (whether delivered or required to be delivered by Buyer) shall be deemed a willful and intentional breach of this Agreement, regardless of whether such failure results, in whole or in part from failure to receive third-party financing).
Appears in 1 contract
Samples: Asset Purchase Agreement (Magellan Midstream Partners Lp)
Financing. (a) Acquiror Purchaser and Acquiror Merger Sub shall comply use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Debt Financing (or the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, in each case in lieu thereof) on the terms and conditions described in or contemplated by the Debt Financing Commitments (including complying with any request exercising so-called “flex” provisions), including using reasonable best efforts to satisfy on a timely basis all terms conditions to funding in the Debt Financing Commitments or with respect to such permanent financing contemplated by the Debt Commitment Letters or an alternative source of debt financing and enforcing all of its rights under or with respect to the Debt Financing Commitments or any alternative source of debt financing. Purchaser and the Merger Sub shall not (without the prior written consent of the Commitment Letters and shall take all actions required on their part under Company) consent or agree to any amendment or modification to, or any waiver of any provision under, the terms of Debt Financing Commitments or the Commitment Lettersdefinitive agreements relating to the Debt Financing, including without limitationor enter into any other agreement or arrangement with respect to alternative financing, providing the Lenders with all information that they may request and entering into appropriate loan agreements if such amendment, modification or waiver or other agreements in order to obtain the Financing.
(b) In the event that agreement or arrangement (i) any Lender shall notify Acquiror decreases the aggregate amount of the Debt Financing to an amount that, together with Purchaser’s and the Merger Sub’s cash on hand or Acquiror available alternative financing commitments, would be less than an amount that would be required to fund the payment of the Aggregate Adjusted Closing Consideration and the fees and expenses of or payable by Purchaser and Merger Sub that it is withdrawing related to the transactions contemplated hereby or terminating the Commitment Letters (ii) imposes new or that additional conditions or otherwise expands any of the conditions to the receipt of the Debt Financing (or the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, in each case in lieu thereof) or otherwise consent or agree to any amendment or modification, or any waiver of any provision or any other agreement or arrangement that would or would reasonably be expected to prevent or materially delay the funding or financing described therein or the consummation of the transactions contemplated by this Agreement; provided, that, for the avoidance of doubt Purchaser and the Merger Sub shall be permitted to consent or agree to any amendment or modification, or any waiver of any provision, under the Debt Financing Commitments if such amendment, modification or waiver solely extends the term of the Debt Financing Commitments or adds lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date hereof as parties thereto. Upon the Company’s request, Purchaser and the Merger Sub shall keep the Company reasonably informed on a current basis and in reasonable detail of material developments in respect of the Debt Financing and the financing process relating thereto. Purchaser and the Merger Sub shall provide the Company prompt notice (x) of any breach or default by any party to the Debt Financing Commitments (or the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, in each case in lieu thereof) or definitive agreements related thereto of which Purchaser and the Merger Sub become aware that would or would reasonably be expected to prevent or materially delay the funding or financing described in the Commitment Letters cannot be satisfied Debt Financing Commitments or the consummation of the transactions contemplated by this Agreement, and (y) if at any time for any reason Purchaser and the Merger Sub believes in good faith that it will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Debt Financing becomes unavailable for on the terms and conditions contemplated by the Debt Financing Commitments or definitive agreements related thereto. As soon as reasonably practicable, Purchaser and the Merger Sub shall provide any reason under information reasonably requested by the Commitment LettersCompany relating to any circumstance referred to in clause (x) or (y) of the immediately preceding sentence.
(b) Prior to the Closing, Acquiror each of the Company and XX Xxxxxxx shall, and each shall cause the other APN Entities and their respective Affiliates to, and shall use its commercially reasonable best efforts to secure cause its, the APN Entities’ and their respective Affiliates’ officers, directors, employees, agents, and other representatives (collectively, “Representatives”) to, at Purchaser’s sole cost and expense, provide all cooperation that is reasonably requested by Purchaser to assist Purchaser and the Merger Sub in the arrangement of any third party debt financing (including the Debt Financing and any debt capital markets financing) for the purpose of funding the payment of the Aggregate Adjusted Closing Consideration and the fees and expenses of or payable by Purchaser and Merger Sub related to the transactions contemplated hereby (collectively, the “Financing”), including, without limitation: (i) using reasonable best efforts to, as promptly as reasonably practicable, furnish to Purchaser and the Financing Sources the Required Information and using reasonable best efforts to furnish to Purchaser such portion limited financial data as is customarily included in a registered offering of debt securities with respect to an acquired business for which neither financial statements under Item 3-05 of Regulation S-X nor pro forma financial statements under Article 11 of Regulation S-X are required to the extent reasonably requested by Purchaser; (ii) using reasonable best efforts to cooperate with the marketing efforts of Purchaser and the Financing Sources, including to participate in a reasonable number of requested meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the APN Entities’ and any of their respective Affiliates senior management and Representatives, presentations, roadshows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing; (iii) using reasonable best efforts to cause the APN Entities’ and their independent accountant, as reasonably requested, to provide reasonable assistance to Purchaser consistent with their customary practice (including to provide any “comfort letters” (including drafts thereof) necessary and reasonably requested by Purchaser in connection with any debt capital markets transaction comprising a part of the Financing (which such accountants would be prepared to issue at the time of pricing and at closing of any offering or placement of the Financing), in each case, on customary terms no less favorable and consistent with their customary practice) and to participate in reasonable and customary due diligence sessions; and (iv) to the extent that the APN Entities or any of their respective Affiliates are to be party to the Financing following the occurrence of the Effective Time, (x) facilitating the execution and delivery at the Closing of definitive documents (including loan agreements, customary guarantee documentation (if applicable) and other applicable loan documents) related to the Financing, and (y) using reasonable best efforts to, to the extent requested by the Financing Sources at least ten (10) Business Days prior to the Closing Date, provide to the Financing Sources at least three (3) Business Days prior to the Closing Date all customary and reasonable documentation and other information required by regulatory authorities with respect to the APN Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001, as amended; provided, however, that nothing in this Section 6.8 shall require such cooperation to the extent it would (A) unreasonably disrupt or interfere with the business or operations of the APN Entities or the conduct thereof, (B) require the APN Entities to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with the Financing, prior to the occurrence of the Effective Time (except to the extent Purchaser promptly reimburses (in the aggregate case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to Acquiror the APN Entities), or incur any liability in connection with the Financing that is effective prior to the occurrence of the Effective Time, or (C) require the APN Entities to enter into any instrument or agreement, or agree to any change or modification to any instrument or agreement, that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time does not occur (other than customary authorization letters in connection with any syndication materials). Without limiting the foregoing proviso, Purchaser agrees, promptly upon request, to reimburse the APN Entities for all of their reasonable out-of-pocket costs, fees and expenses (including fees and disbursements of counsel) in connection with the Financing promptly following the incurrence thereof (but excluding any costs, fees and expenses of preparing the Required Information set forth in clauses (i) and (ii) of the definition thereof, which shall not be reimbursed). Purchaser shall indemnify and hold harmless XX Xxxxxxx Seller, XX Xxxxxxx, the APN Entities and their respective Affiliates, and its and their respective Representatives, from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties of any type actually suffered or incurred by any of them in connection with any action taken, or cooperation provided, by XX Xxxxxxx Seller, XX Xxxxxxx, the APN Entities and their respective Affiliates or any of their respective Representatives pursuant to this Section 6.8 and/or the provision of information utilized in connection therewith (other than information provided in writing by any of the XX Xxxxxxx Seller, XX Xxxxxxx or the APN Entities or their respective Affiliates specifically for use in connection therewith); in each case, except to the extent that any such obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties, fees, costs or other liabilities are suffered or incurred as a result of the APN Entities or their Representatives’ gross negligence, willful misconduct or material breach of this Agreement, as applicable. The Company hereby consents to the use of its and the other APN Entities’ logos in connection with the Financing, provided such logos are used solely in a customary manner that is not intended to or reasonably likely to harm or disparage the APN Entities or the reputation or goodwill of the APN Entities and on such other customary terms contained and conditions as the Company shall reasonably impose. Notwithstanding anything to the contrary provided herein or in the Commitment Letters. Acquiror Confidentiality Agreement, Purchaser shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror be permitted to share all information subject to such agreements with its potential financing sources and their Representatives, subject to customary confidentiality undertakings by such potential financing sources with respect thereto.
(c) Purchaser and Merger Sub acknowledge and agree that it obtaining the Financing is amending not a condition to the Commitment LettersClosing.
Appears in 1 contract
Financing. (a) Acquiror and Acquiror Sub The Company shall comply with all terms of the Commitment Letters use commercially reasonable efforts, and shall take all actions required on their part under the terms of the Commitment Letterscause its Subsidiaries to use commercially reasonable efforts, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure cause its and its Subsidiaries’ respective officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the “Company Representatives”) to, at Parent’s sole expense, provide all cooperation that is reasonably necessary or customary and reasonably requested by Parent to assist Parent in the arrangement of bank financing and/or bond offerings for the purpose of financing the Merger, the fees and expenses incurred in connection therewith and the other transactions contemplated hereby (the “Debt Financing”), including assisting with the preparation of materials for presentations, memoranda and similar documents required in connection with the Debt Financing; provided, however, that (x) nothing herein shall require such portion cooperation to the extent it would (A) unreasonably disrupt the conduct of the Financing Company’s and the Subsidiaries’ respective businesses, (B) require the Company or any of the Subsidiaries or any of the Company Representatives to pay any fees or expenses or otherwise incur any liability or give any indemnities prior to the Effective Time (except to the extent any such fee or expense is conditioned on terms no less favorable the consummation of the Merger or Parent has advanced the amount of such fees, expenses or liabilities to the Company or the Subsidiaries), and (C) require the preparation or delivery of (i) financial statements, other than those contemplated by Sections 5.1(c) and 5.1(d), or (ii) pro forma financial information or forecasts of the Company and the Subsidiaries and (y) any documentation executed by the Company or any of its Subsidiaries shall not become effective until the consummation of the Closing. Notwithstanding anything to the contrary provided herein or in the aggregate Confidentiality Agreement, Parent shall be permitted to Acquiror than share all information subject to such agreement with its financing sources, subject to customary confidentiality undertakings by such financing sources with respect thereto.
(b) Parent shall indemnify and hold harmless each of the terms contained Company, the Subsidiaries and their respective Company Representatives and any Seller Indemnified Party from and against any and all Losses suffered or incurred by them in connection with the Commitment Lettersarrangement of the Debt Financing and the performance of their respective obligations under this Section 5.17. Acquiror shall immediately notify Holdings if Parent shall, promptly upon request of the Company, reimburse the Company and the Subsidiaries for all out-of-pocket costs and expenses incurred by the Company or the Subsidiaries (including those of their respective Company Representatives) in connection with the cooperation required by this Section 5.17.
(c) Each of Parent and Merger Sub acknowledges and agrees that (i) the obtaining of the Debt Financing is not a condition to the Closing, and (ii) that none of Parent’s or Merger Sub’s respective obligations hereunder are conditioned in any Lenders shall notify Acquiror manner upon Parent or Acquiror Merger Sub that it is amending obtaining financing in respect of the Commitment Letterstransactions contemplated hereby.
Appears in 1 contract
Financing. (a) Acquiror Parent shall use its reasonable best efforts to: (i) negotiate and Acquiror Sub shall comply execute definitive agreements (the “Definitive Debt Agreements”) with all respect to the Debt Financing on the terms and conditions contemplated by the Debt Financing Commitment or, to the extent the financing contemplated by the Debt Financing Commitment is not available to Parent, on terms that do not contain any conditions to the receipt of such Debt Financing that are materially less favorable, in the Commitment Letters aggregate, to Parent and shall take all actions required the Company (as determined in the reasonable judgment of Parent, and with such determination based in part on their part under the relevant closing conditions) than the terms of the Debt Financing Commitment Lettersand subject to the additional limitations set forth in Section 5.12(c), including without limitation(ii) satisfy on a timely basis all conditions set forth in the Debt Financing Commitment (and the Definitive Debt Agreements) applicable to Parent and Merger Sub that are within their control, providing (iii) obtain, at or prior to the Closing Date, the financing necessary such that Parent and Merger Sub, in either case, will have at and after the Closing funds sufficient to pay all of the amounts payable under Article I or otherwise in connection with the Merger and all fees and expenses of the parties hereto associated with the consummation of the Merger and the other transactions contemplated hereby and (iv) comply with Parent’s and Merger Sub’s obligations under the Debt Financing Commitment (and the Definitive Debt Agreements) and not take or fail to take any action that would reasonably be expected to prevent or delay the availability of the Financing on the terms and conditions contemplated by the Financing Commitments. In the event that all conditions contained in the Financing Commitments (other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied, Parent shall use its reasonable best efforts to cause the Lenders with all information and the Sponsor to fund the Financing on the Closing Date, including, in the event of a breach or default by the other parties thereto, by enforcing in a timely manner its rights (including by seeking specific performance of the other parties thereto) under the Financing Commitments and/or the applicable definitive agreements therefor. If any portion of the Debt Financing becomes unavailable or if Parent becomes aware of any event or circumstance that they may request would, or would reasonably be expected to, make any portion of the Debt Financing to become unavailable, in each case, on the terms and entering into appropriate loan agreements or other agreements conditions contemplated in order the Debt Financing Commitments, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms that comply with the Financinglimitations on amendments, modifications and replacements of the Debt Financing Commitment set forth in the first sentence of Section 5.12(c), and in an amount sufficient, together with the Equity Financing to pay all of the amounts payable under Article I or otherwise in connection with the Merger and all fees and expenses relating to the consummation of the Merger and the other transactions contemplated hereby, as promptly as practicable following the occurrence of such event. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments of which Parent becomes aware or any termination of the Financing Commitments.
(b) In Prior to the event that Closing, the Company shall use its reasonable best efforts to provide all cooperation reasonably requested by Parent, and to cause its Subsidiaries and Representatives to so cooperate, in connection with the arrangement of the Debt Financing, including by: (i) furnishing Parent and its financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries required under the Debt Financing Commitment, as may be reasonably requested in writing by Parent, including all financial statements and projections and other pertinent information required by the Debt Financing Commitment and reasonably requested in writing by Parent (other than information for which the Company is dependent on information to be provided by Parent to the Company in order to prepare such financial statements and projections, unless such information is provided to the Company by Parent or the Lender or any Lender of their respective Representatives at least five (5) Business Days prior to the date required to be delivered by the Company), (ii) participating in a reasonable number meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (iii) assisting with the preparation of materials for rating agency presentations, confidential information memoranda and similar documents required in connection with the Financing and (iv) executing and delivering any pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent or otherwise reasonably facilitating the pledging of collateral (provided that such documents will not take effect until the Effective Time); provided that nothing herein shall notify Acquiror require such cooperation to the extent it would unreasonably interfere with the business or Acquiror Sub operations of the Company or its Subsidiaries; provided, further, that, notwithstanding the foregoing, no obligations of the Company, its Subsidiaries or their respective Affiliates or Representatives under any agreement, document or instrument executed or delivered by the Company, its Subsidiaries or their respective Affiliates or Representatives pursuant to the Company’s obligations under this Section 5.12(b) shall be effective until the Effective Time, and the Company Board of Directors shall not be required to pass resolutions or consents to approve the Debt Financing; provided, further, that nothing herein shall require such assistance to the extent it would require the Company to pay (or to agree to pay) any fees, reimburse any expenses, incur any liability or give any indemnities prior to the Effective Time for which it is withdrawing not promptly reimbursed or terminating indemnified. If the Closing does not occur, Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives for and against any and all losses actually suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent pursuant to this Section 5.12(b) and any information utilized in connection therewith (other than information provided by the Company or its Subsidiaries). All non-public or otherwise confidential information regarding the Company or its Subsidiaries obtained by Parent or its Representatives pursuant to this Section 5.12 shall be kept confidential in accordance with the Confidentiality Agreement.
(c) Neither Parent nor Merger Sub shall amend, modify, alter, waive, replace or agree to amend, modify, alter, waive or replace (in any case whether by action or inaction and including by entering into the Definitive Debt Agreements or obtaining any Alternative Financing Commitment) any term of the Financing Commitments (or, if entered into, the Definitive Debt Agreements) if such amendment, modification, alteration, waiver or replacement (x) reduces the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount and after giving effect to the exercise of any lender flex provisions provided under the Debt Financing Commitment Letters and the Fee Letter) beyond the amount necessary for Parent and Merger Sub to sufficiently pay all of the amounts payable under Article I or that otherwise in connection with the Merger and all fees and expenses relating to the consummation of the Merger and the other transactions contemplated thereby or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) delay or prevent the Commitment Letters cannot Closing Date, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (III) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Commitments or the definitive agreements with respect thereto, and each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be satisfied taken, all actions and will not to do, or cause to be waived done, all things necessary, proper or advisable to arrange and obtain the Financing on the terms and conditions described in the Financing Commitments (including any lender flex provisions contained in the Fee Letter), including using its reasonable best efforts to (i) maintain in effect the Financing Commitments and, following execution thereof, the Definitive Debt Agreements, (ii) Acquiror has agreed to any amendment satisfy on a timely basis all conditions applicable to the Parent and Merger Sub to obtaining the Debt Financing at the Closing set forth therein that are within its control, (iii) enter into the Definitive Debt Agreements on the terms and conditions contemplated by the Debt Financing Commitment Letters (other than changes to such terms and conditions as a result of the exercise of any lender flex provisions contained in the Fee Letter or other changes that establish additional conditions comply with the limitations set forth in the first sentence of this Section 5.12(c)) and provide copies of such definitive agreements to the Lenders' obligations to provide Company and (iv) upon satisfaction of the conditions set forth in the Financing or otherwise makes it more difficult for Acquiror to obtain Commitments, consummate the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Eventat or prior to the Closing. In the event all or any portion of the Debt Financing becomes unavailable or if Parent becomes aware of any event or circumstance that would, or would reasonably be expected to, make any portion of the Debt Financing unavailable, in each case on the terms and conditions contemplated in the Debt Financing Commitment (including any lender flex provisions contained in the Fee Letter and other than changes to such terms and conditions that, in each case, do not reduce the aggregate committed amount beyond the amount necessary for Parent and Merger Sub to sufficiently pay all of the amounts payable under Article I or otherwise in connection with the Merger and all fees and expenses relating to the consummation of the Merger and the other transactions contemplated thereby, or the conditionality of, the Debt Financing Commitment), Parent shall promptly notify the Company (and in any reason under the Commitment Letters, Acquiror event within one (1) Business Day thereof) and shall use its commercially reasonable best efforts to secure all or such portion arrange to obtain alternative financing from alternative sources on terms that comply with the limitations on amendments, modifications and replacements of the Debt Financing on terms no less favorable Commitment set forth in the aggregate first sentence of this Section 5.12(c) and in an amount sufficient to Acquiror than pay all of the terms contained amounts payable under Article I or otherwise in connection with the Commitment Letters. Acquiror Merger and all fees and expenses relating to the consummation of the Merger and the other transactions contemplated hereby, as promptly as practicable following the occurrence of such event.
(d) Parent and the Surviving Corporation shall immediately notify Holdings take any and all actions reasonably necessary to ensure that any distributions by the Surviving Corporation to the Company Common Stockholders in connection with this Agreement, if any, shall be made in compliance with the DGCL and without any Lenders liability to the Indemnified Parties or the Company Common Stockholders under the DGCL.
(e) At the Closing, Parent shall notify Acquiror provide to Fenwick & West LLP, counsel to the Company, Federal Reserve Wire Network reference numbers reflecting the funding to Parent of amounts dispersed to Parent (or Acquiror Sub that it is amending one or more of Parent’s Subsidiaries) pursuant to the Commitment LettersFinancing.
Appears in 1 contract
Financing. (a) Acquiror Purchaser shall take, or cause to be taken, all actions, and Acquiror Sub do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund the Sale Amounts on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Purchaser shall comply to take, or cause to be taken all actions and to do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Financing on the terms and conditions described in the Commitment Letters as promptly as possible but in any event prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof, including by (i) maintaining in effect the Commitment Letters, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying on a timely basis all terms of conditions in the Commitment Letters and the Definitive Agreements and complying with its obligations thereunder. Purchaser shall take all actions required on their part enforce its rights under the terms Commitment Letters and Definitive Agreements in a timely and diligent manner. Without limiting the generality of the foregoing, in the event that all conditions contained in the Commitment LettersLetters or the Definitive Agreements (other than the consummation of the Sale) have been satisfied, Purchaser shall cause the Lenders and the Equity Financing Source to comply with their respective obligations thereunder, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain fund the Financing.
(b) In the event that (i) Purchaser shall not, without the prior written consent of Seller: (A) permit any Lender shall notify Acquiror amendment or Acquiror Sub that it is withdrawing modification to, or terminating any waiver of any provision or remedy under, the Commitment Letters or that the Definitive Agreements if such amendment, modification, waiver or remedy (1) adds new (or adversely modifies any of the existing) conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings consummation of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under Financing, (2) reduces the amount of the Financing, (3) adversely affects the ability of Purchaser to enforce its rights against other parties to the Commitment LettersLetters or the Definitive Agreements as so amended, Acquiror replaced, supplemented or otherwise modified, relative to the ability of Purchaser to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (4) would impede or delay the consummation of the Sale and the other transactions contemplated by this Agreement; or (B) terminate the Commitment Letters or any Definitive Agreement. Purchaser shall use its commercially reasonable efforts promptly deliver to secure all Seller copies of any such amendment, modification, waiver or such replacement.
(ii) In the event that any portion of the Financing on terms no less favorable becomes unavailable, regardless of the reason therefor, Purchaser will (A) use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with the available portion of the Financing, to consummate the transactions contemplated by this Agreement and to pay the Sale Amounts) from the same or other sources and which do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions set forth in the aggregate Financing and (B) promptly notify Seller of such unavailability and the reason therefor. For the purposes of this Agreement, the term “Debt Commitment Letter” shall be deemed to Acquiror include any commitment letter (or similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Commitment Letter remaining in effect at the time in question). Purchaser shall provide Seller with prompt oral and written notice of any actual or threatened breach, default, termination or repudiation by any party to the Commitment Letters or any Definitive Agreement and a copy of any written notice or other written communication from any Lender or other financing source with respect to any breach, default, termination or repudiation by any party to the Commitment Letters or any Definitive Agreement of any provision thereof. Purchaser shall keep Seller reasonably informed on a current basis of the status of its efforts to consummate the Financing. The foregoing notwithstanding, compliance by Purchaser with this Section 5.17(a) shall not relieve Purchaser of its to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
(b) Prior to the Closing, Seller shall use its reasonable best efforts to cause the Transferred Entities to provide, and shall use its reasonable efforts to cause the Transferred Entities’ Representatives to provide, all cooperation reasonably requested Purchaser necessary for the arrangement of the Financing, including by (A) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable times and with reasonable advance notice, (B) to the extent required by the Debt Financing, using reasonable efforts to facilitate the pledging of collateral, effective no earlier than the terms Closing and (C) furnishing Purchaser and the Lenders as promptly as reasonably practicable following the delivery of a request therefor to Seller by Purchaser (which notice shall state with specificity the information requested) such financial and other information regarding the Transferred Entities as is reasonably available to Seller at such time and is customarily required in connection with the execution of financings of a type similar to the Debt Financing (provided that, Seller will have no obligation to prepare audited financial information, pro forma financial information or post-closing financial information); it being understood that Seller shall have satisfied its obligations set forth in clauses (A) through (C) of this sentence if Seller shall have used its reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. The foregoing notwithstanding, neither the Seller nor the Transferred Entities shall be required to take or permit the taking of any action pursuant to this Section 5.17(b) that: (i) would require (A) Seller or any of its Subsidiaries (other than the Transferred Entities) or any Persons who are officers or directors of Seller or any of its Subsidiaries or Affiliates (other than the Transferred Entities) to pass resolutions or consents to approve or authorize the execution of the Financing or enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement or (B) the Transferred Entities or any Persons who are officers or directors of the Transferred Entities to pass resolutions or consents to approve or authorize the execution of the Financing or enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement in each case prior to the Closing (it being understood that in no event shall any Persons who are officers or directors of the Transferred Entities be required take any such actions except as and to the extent that such Persons are continuing in such roles following the Closing, and only in their roles as such), (ii) would cause any representation or warranty in this Agreement to be breached by Seller or any of its Subsidiaries, (iii) (A) would require Seller or any of its Subsidiaries (other than the Transferred Entities) to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Financing or (B) would require the Transferred Entities to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Financing prior to the Closing or have any obligation of the Transferred Entities under any agreement, certificate, document or instrument be effective until the Closing, (iv) would cause any director, officer or employee or stockholder of Seller or any of its Subsidiaries to incur any personal liability, (v) would conflict with the organizational documents of Seller or any of its Subsidiaries or any Law, (vi) would reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any contract to which Seller or any of its Subsidiaries is a party, (vii) would require Seller, any of its Subsidiaries or any of their Representatives to provide access to or disclose information that Seller or any of its Subsidiaries determines would jeopardize any attorney-client privilege of Seller or any of its Subsidiaries, (viii) would require Seller, its Subsidiaries or any of their Representatives to prepare any financial statements or information that are not available to Seller and prepared in the ordinary course of its financial reporting practice or (ix) would unreasonably interfere with the ongoing operations of Seller or any of its Subsidiaries. Nothing contained in this Section 5.17 or otherwise shall require (i) Seller or any of its Subsidiaries (other than the Commitment LettersTransferred Entities) to be an issuer or other obligor with respect to the Financing or (ii) the Transferred Entities to be an issuer or other obligor with respect to the Financing prior to Closing. Acquiror Purchaser shall, promptly upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs incurred by Seller or its Subsidiaries or their respective Representatives in connection with such cooperation and shall immediately notify Holdings if indemnify and hold harmless Seller and its Subsidiaries and their respective Representatives from and against any Lenders and all losses suffered or incurred by them in connection with the arrangement of the Financing, any action taken by them at the request of Seller pursuant to this Section 5.17(b) and any information used in connection therewith (other than information provided in writing by the Seller or its Subsidiaries specifically in connection with its obligations pursuant to this Section 5.17(b)). For the avoidance of doubt, nothing in this Section 5.17 shall notify Acquiror require Seller to cause any of its Affiliates, other than a Transferred Entity, to take any actions or Acquiror Sub provide any cooperation.
(c) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in Section 5.17(b), represent the sole obligation of Seller, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Purchaser with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the exhibits and schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Purchaser or any of its Affiliates or any other financing or other transactions be a condition to any of Purchaser’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, Seller’s breach of any of the covenants required to be performed by it under Section 5.17(b) shall not be considered in determining the satisfaction of the condition set forth in Section 8.02(b), unless such breach is amending a willful and material breach and is the Commitment Lettersprimary cause of Purchaser being unable to obtain the proceeds of the Financing at the Closing.
(d) All non-public or otherwise confidential information regarding Seller or its Subsidiaries obtained by Purchaser or its Representatives pursuant to Section 5.17(b) shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (CURO Group Holdings Corp.)
Financing. (a) Acquiror Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with use its reasonable best efforts to do, or cause to be done, all terms things necessary, proper or advisable to obtain the proceeds of the Commitment Letters and shall take all actions required Financing on their part under the terms of and conditions described in the Commitment Letters, including without limitationto (i) maintain in effect the Commitment Letters, providing (ii) negotiate and enter into definitive agreements with respect to the Lenders Debt Financing consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfy on a timely basis all information conditions in the Commitment Letters and comply with its obligations thereunder. Without limiting the generality of the foregoing, in the event that they may request all conditions contained in the Commitment Letters (other than the consummation of the Sale and entering into appropriate loan those conditions the failure of which to be satisfied is attributable to a breach by Buyer of its representations, warranties, covenants or agreements or other agreements contained in order this Agreement) have been satisfied, Buyer shall use reasonable best efforts to obtain cause the FinancingDebt Financing Entities and the Equity Commitment Parties to comply with their obligations thereunder, including to fund the Financing to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including by using its reasonable efforts to enforce its rights under the Commitment Letters). Buyer shall use its reasonable efforts to comply with its obligations, and enforce its rights, under the Commitment Letters in a timely and diligent manner.
(b) Buyer shall not, without the prior written consent of Seller: (i) permit any amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letters in each case to the extent such amendment, modification, or waiver (A) adds any new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the amount of the Debt Financing below an amount that, when combined with the aggregate amount of the Equity Financing (including any increase thereof and any other financial resources of Buyer that are immediately available in cash), is sufficient to provide Buyer with net cash proceeds on the Closing Date sufficient to enable Buyer to consummate the transactions contemplated by, and to satisfy all of its obligations under, this Agreement and the Commitment Letters on the terms contemplated hereby and thereby and to pay the Transaction Amounts, (C) adversely affects the ability of Buyer to enforce its rights against other parties to the Commitment Letters, in each case, as so amended, replaced, supplemented or otherwise modified, relative to the ability of Buyer to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof, or (D) could otherwise reasonably be expected to prevent, impede or materially delay the funding of the Financing or the consummation of the Sale or the other transactions contemplated by this Agreement; or (ii) terminate any Commitment Letter. Buyer shall promptly deliver to Seller copies of any amendment, modification, waiver or replacement of any Commitment Letter.
(c) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, Buyer shall (i) use reasonable best efforts to obtain alternative debt financing in an amount sufficient, when combined with the available portion of the Debt Financing and the aggregate amount of the Equity Financing (including any Lender increase thereof and any other financial resources of Buyer that are immediately available in cash) will provide Buyer with net cash proceeds on the Closing Date sufficient to enable Buyer to consummate the transactions contemplated by and to satisfy all of its obligations under this Agreement and the Commitment Letters on the terms contemplated hereby and thereby and to pay the Transaction Amounts from the same or other sources and which do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions set forth in the Debt Commitment Letter and shall deliver to Seller a true and complete copy of any commitment letter (or similar agreement) (together with a copy of any related fee letter with redactions consistent in scope with the redactions made to the Debt Fee Letter delivered as of the date hereof) with respect thereto and (ii) promptly notify Acquiror Seller of such unavailability and the reason therefor in accordance with this Section 5.22(c). For the purposes of this Agreement, (i) the term “Debt Commitment Letter” shall be deemed to include any commitment letter (or Acquiror Sub that it is withdrawing similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Debt Commitment Letter remaining in effect at the time in question) and (ii) the term “Debt Financing” shall be deemed to include any alternative or terminating new financing arranged in compliance herewith (and any original Debt Financing remaining in effect at the time in question). For the avoidance of doubt, if Buyer proceeds with any such alternative financing, such alternative financing shall be subject to the same obligations as set forth in this Section 5.22(c). Buyer shall keep Seller reasonably informed promptly and in reasonable detail of the status of its efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, Buyer shall give the Seller prompt notice (and a copy of any written notice or other written communication from any Financing Parties with respect thereof) (A) of any actual or threatened breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to the Commitment Letters, (B) of the receipt by Buyer of any notice or other communication (in writing) from any Financing Parties or other financing source with respect to any (1) breach, default, termination or repudiation by any party to the Commitment Letters or that (2) material dispute or disagreement between or among any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment parties to the Commitment Letters and (C) if for any reason Buyer believes in good faith that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror may not be able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each on a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event timely basis all or any portion of the Financing becomes unavailable for any reason under on the Commitment Lettersterms, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than manner or from the terms contained in sources contemplated by the Commitment Letters. Acquiror Notwithstanding the foregoing, nothing in this Section 5.22 shall immediately notify Holdings if any Lenders require, and in no event shall notify Acquiror the “reasonable best efforts” of Buyer be deemed or Acquiror Sub that it is amending construed to require, Buyer to (i) seek or accept financing on terms materially less favorable, in the aggregate, to Buyer (as determined by Buyer in its reasonable discretion) than those set forth in the Commitment LettersLetter as in effect on the date hereof (including any “flex” provisions in any fee letter related thereto, if any), (ii) waive any term or condition of this Agreement, (iii) pay any material fees in excess of those contemplated by the Commitment Letter and, in the case of the Debt Commitment Letter, related fee letter as in effect on the date hereof (whether to secure a waiver of any conditions contained therein or otherwise) or (iv) seek or accept any additional equity financing from any Person that is not acceptable to Buyer in its reasonable discretion.
(d) Buyer expressly acknowledges and agrees that the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Buyer or any Affiliate of Buyer or any other financing or other transactions is not a condition to any of Buyer’s obligations hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Trinity Industries Inc)
Financing. (a) Acquiror Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions, and Acquiror Sub shall comply to do, or cause to be done, all things necessary, proper or advisable to arrange, and close concurrently with all terms of the Commitment Letters Closing, the Debt Financing on and shall take all actions required on their part under subject to the terms of and conditions described in the Debt Commitment Letters, including without limitationusing commercially reasonable efforts (i) to negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (including, providing to the Lenders extent required by the Debt Financing Sources, the “market flex” provisions) and subject only to the conditions contained in the Debt Commitment Letters, (ii) to satisfy on a timely basis all conditions applicable to Purchaser in such definitive agreements, (iii) to comply with its obligations under the Debt Commitment Letters and (iv) assuming all information conditions precedent in the Debt Commitment Letters have been satisfied (or duly waived), consummate or cause the consummation of the Debt Financing contemplated by the Debt Commitment Letters at the Closing. Purchaser shall, and shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that they is reasonably likely to result in the failure of any of the conditions contained in the Debt Commitment Letters or in any definitive agreement related to the Debt Financing to be satisfied (or duly waived) or the Debt Financing to be available concurrently with the Closing. Purchaser shall give Parent prompt notice upon becoming aware of any fact that would reasonably be expected to give rise to any material breach by any party to the Debt Commitment Letters or any breach that could impact the amount or availability of financing. Purchaser shall, upon the reasonable request of Parent, provide Parent on a prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letters if such amendment, modification, waiver or remedy would reasonably be expected to impact or delay in any material respect the ability of Purchaser to consummate the transactions contemplated hereby. For the avoidance of doubt, Purchaser (x) may request and entering into appropriate loan agreements agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Debt Commitment Letters or any definitive agreements related to the Debt Financing to the extent such amendment, supplement, modification or waiver would not (i) reduce the aggregate amount of the Debt Financing (or the cash proceeds available therefrom) below the Required Amount, (ii) impose any material new or additional conditions precedent to the availability and/or initial funding of the Debt Financing, or adversely amend or modify any of the existing conditions precedent thereto, in a manner that would reasonably be expected to result in any of the conditions precedent set forth in the Debt Commitment Letters not being satisfied, or the Debt Financing not being available to the Purchaser, on the Closing Date or (iii) otherwise reasonably be expected to materially prevent, delay or impair the availability of any of the Debt Financing or the ability of Purchaser to obtain the Debt Financing in order to obtain consummate the Transactions at Closing, in each case, as compared to the Debt Commitment Letters as in effect on the date hereof and (y) shall not terminate, or permit the termination of, any Debt Commitment Letter, unless such Debt Commitment Letter is replaced with a new commitment in accordance with paragraph (b) below that, were it structured as an amendment to an existing Debt Commitment Letter, would satisfy the requirements of the foregoing clause (x). Upon any such amendment, supplement or modification of any Debt Commitment Letters in accordance with this Section 5.14(a), Purchaser shall provide a copy thereof to Seller, and references to the “Debt Commitment Letters” shall include such documents as permitted to be amended, supplemented or modified under this Section 5.14(a), and references to the “Debt Financing” shall include the financing contemplated by the Debt Commitment Letters as permitted to be amended, supplemented or modified under this Section 5.14(a).
(b) In If any portion of the event Debt Financing becomes unavailable on the terms and conditions (including the “market flex” provisions) contemplated in the Debt Commitment Letters, Purchaser shall promptly notify Parent and shall and Purchaser shall, and shall cause its Affiliates to, use best efforts to obtain, as promptly as practicable following the occurrence of such event, replacement commitments in amounts and on terms that will enable Purchaser to consummate the Transactions at Closing; provided that the terms of any such replacement commitments (i) shall not be reasonably likely to materially impair or delay the availability and/or funding of the Debt Financing or the Closing and (ii) shall not have conditionality materially more onerous than that in the Debt Commitment Letters. Purchaser shall deliver to Seller complete and correct copies of all amendments, supplements, other modifications or agreements (including redacted fee letters) pursuant to which any Lender amended, supplemented, modified or replacement commitments shall notify Acquiror provide Purchaser with any portion of the Debt Financing. Purchaser shall promptly deliver to Parent true and complete copies of all commitment letters and/or agreements relating to such alternative debt financing (which such commitment letters shall also be deemed to constitute the Debt Commitment Letters).
(c) Parent agrees to use commercially reasonable efforts to cause Seller or Acquiror Sub that it is withdrawing any of its respective Affiliates (including legal and accounting employees) to provide such cooperation as shall be reasonably requested by Purchaser in connection with the Debt Financing, including: (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies and assisting Purchaser in obtaining ratings as contemplated by the Debt Financing, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, lender presentations, bank information memoranda and similar documents for the Debt Financing, including execution and delivery of customary representation and/or authorization letters in connection with bank information memoranda, (iii) furnishing Purchaser with (y) all financial information regarding the Transferred Entities and the Business reasonably requested and necessary for Purchaser to prepare the pro forma financial statements required pursuant to Section 5 of Exhibit A and clause (c) of Annex III, as applicable, of the Debt Commitment Letters and (z) all other financial and pertinent information as may be reasonably requested by Purchaser to satisfy the terms and conditions set forth in the Debt Commitment Letters; (iv) providing any information necessary to permit the preparation of the Definitive Documents and documents to be delivered pursuant thereto, including the officer’s certificates, customary closing documents and or terminating other financing deliverables, certificates or documents for the Debt Financing as contemplated by the Debt Commitment Letters or that as may be reasonably requested by Purchaser (including customary consents of accountants for use of their reports in any materials relating to the Debt Financing) or otherwise reasonably facilitating granting of security and the pledging of collateral, (v) providing any information necessary for the preparation and delivery of, as of the conditions Closing Date, a certificate of the chief financial officer (or other comparable officer) of Purchaser with respect to solvency matters, (vi) assisting Purchaser to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts to which any Transferred Entity is a party and arranging discussions among Purchaser and the Debt Financing Sources with other parties to material leases, encumbrances and contracts as of the Closing Date, (vii) taking all actions, subject to the Financing occurrence of the Closing Date, reasonably requested by Purchaser that are necessary or customary to permit the consummation of the Debt Financing, and to permit the proceeds thereof, together with cash at any Transferred Entity (not needed for other purposes), to be made available to the Purchaser on the Closing Date to consummate the Transactions, (viii) cooperating with Purchaser in its efforts to obtain accountants’ comfort letters, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other third-party documentation and items relating to the Debt Financing, as reasonably requested by Purchaser, (ix) assisting in the Commitment Letters cannot be satisfied obtainment of inventory appraisals and will not be waived or field examinations as promptly as practicable, (iix) Acquiror has agreed taking all actions reasonably necessary to any amendment permit the prospective lenders involved in the Debt Financing to evaluate the Business’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the Commitment Letters that establish additional conditions extent customary and reasonable, (xi) at least five business days prior to the Lenders' obligations Closing Date, provide information regarding any Transferred Entities reasonably required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act of 2001, to provide the Financing or otherwise makes it more difficult extent requested in writing at least 10 business days prior to the Closing Date, (xii) obtaining and facilitating the negotiation of the payoff letters referenced in Section 2.4(b)(i)(G), (xiii) permitting the reasonable use by Purchaser and its Affiliates of Parent’s, its Affiliates’ and the Business’s logos for Acquiror to obtain syndication and underwriting, as applicable, of the Debt Financing (unless Holdings has agreed subject to advance review of and consultation with respect to such use) and (xiv) reasonably cooperating with the marketing and syndication efforts of Purchaser in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event connection with all or any portion of the Financing becomes unavailable for Debt Financing, including reasonable direct contact between senior management, on the one hand, and any reason under actual and potential debt financing sources, on the Commitment Lettersother hand, Acquiror and any actions necessary to ensure that Purchaser’s marketing and syndication efforts benefit from Parent’s and its Affiliates’ existing banking relationships; provided that (x) such requested cooperation shall use not unreasonably interfere with the ongoing operations of Parent and its commercially reasonable efforts to secure all Affiliates and (y) the board of directors (or such portion similar body), directors and officers of each of the Parent, the Seller and their respective affiliates shall not be required, prior to the Closing, (A) to adopt resolutions approving the agreements, documents and instruments in connection with the Debt Financing, (B) to execute, prior to the Closing, any agreements, documents or instruments in connection with the Debt Financing on terms no less favorable that are effective prior to the Closing or (C) to take any action that would subject them to actual or potential liability or make any other payment (other than payments for which the Purchaser is obligated to reimburse the Parent) or incur any other liability or provide or agree to provide any indemnity, guarantee or pledge, in each case, in connection with the Debt Financing. Purchaser shall, promptly upon request by Parent, reimburse Parent for all reasonable and documented out-of-pocket costs (in the aggregate case of attorney’s fees, limited to Acquiror than reasonable and documented fees in respect of one firm of outside counsel) incurred by Parent or any of its Affiliates in connection with such cooperation prior to the terms contained Closing Date. Purchaser shall indemnify and hold harmless Parent and its Affiliates from and against any Losses suffered or incurred by them in connection with the Commitment Lettersarrangement of the Debt Financing and any information utilized in connection therewith, in each case except, to the extent suffered or incurred as a result of the bad faith, gross negligence or willful misconduct by Parent, its Affiliates or any of their respective representatives. Acquiror Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 8.2(b) as it applies to Parent and Seller’s obligations under this Section 5.14(c) shall immediately notify Holdings if any Lenders shall notify Acquiror be deemed satisfied unless the Debt Financing has not been obtained primarily as a result of Parent’s or Acquiror Sub that it is amending the Commitment LettersSeller’s Willful Breach of its obligations under this Section 5.14(c).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Differential Brands Group Inc.)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under Subject to the terms and conditions of the Commitment Lettersthis Agreement, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing., such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends
(b) In AGCO shall use its reasonable best efforts (taking into account the event that anticipated timing of the Closing Date and the Marketing Period) to (iA) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating maintain in effect the Commitment Letters Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without Xxxxxxx’x consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or that definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the conditions aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letters canLetter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be satisfied required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable for any reason under on the terms and conditions (including the flex provisions) contemplated in the Commitment LettersLetter and Fee Letter, Acquiror and such portion is reasonably required to effect the Closing, AGCO shall use its commercially reasonable best efforts to secure all or such arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion of thereof, as the Financing on case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms no and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the aggregate to Acquiror reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment LettersLetter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). Acquiror AGCO shall immediately notify Holdings if deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any Lenders side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall notify Acquiror or Acquiror Sub have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause Xxxxxxx’x Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective 110 Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that it is amending necessary and customarily required for financings of the type contemplated by the Commitment Letters.Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include: (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed; (ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non- public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant; (iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business; (iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(e) None of Trimble, its Subsidiaries and its and their respective Representatives shall be required to take any action that would subject such Person to actual or potential liability, to bear any out-of-pocket cost or expense (except to the extent such Person is promptly reimbursed) or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Committed Financing contemplated by the Commitment Letter or their performance of their respective obligations under this Section 7.15 and any information utilized in connection
Appears in 1 contract
Financing. (a) Acquiror The TWCable Parties shall use, and Acquiror Sub shall comply with all terms cause the members of the Commitment Letters and shall take TWCable Group to use, best efforts (i) to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, proper or advisable to enter into definitive documentation for one or more credit facilities on their part the terms and conditions set forth in the Bridge Commitment Papers, or on other terms reasonably satisfactory to the Board of Directors of TWCable and reasonably satisfactory to TWX, in an aggregate amount of at least $9.0 billion (as such amount may be reduced from time to time in accordance with the terms and conditions of the Bridge Commitment Papers) (the “Special Dividend Financing Facility”), as soon as practicable following the execution of this Agreement and in any event prior to the payment of the Special Dividend and (ii) to deliver all necessary notices and to take, or cause to be taken, all actions necessary to give effect to the borrowing under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) Special Dividend Financing Facility. In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Special Dividend Financing Facility becomes unavailable for any reason under on the terms and conditions set forth in the Bridge Commitment LettersPapers, Acquiror TWCable shall promptly notify TWX and the TWCable Parties shall use its commercially reasonable best efforts to secure obtain any such unavailable portion from alternative sources (any such portion, the “Alternative Financing”), on terms and conditions no less favorable to the TWCable Parties than those set forth in the Bridge Commitment Papers that will still enable the TWCable Parties to consummate the Special Dividend Financing Facility contemplated by this Agreement, as soon as practicable following the occurrence of such event; provided, however, that, to the extent the terms and conditions of any such Alternative Financing differ from the terms and conditions in the Bridge Commitment Papers in any material respect (it being agreed that “material” shall be deemed to include mandatory prepayment terms), such terms and conditions shall be reasonably satisfactory to TWX. TWCable shall deliver to TWX true and complete copies of all or agreements pursuant to which any such alternative source shall have committed to provide the TWCable Parties with any portion of the Special Dividend Financing Facility.
(b) The TWCable Parties and the TWX Parties shall use, and shall cause the members of the TWCable Group and TWX Group, respectively, to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to enter into definitive documentation for a credit facility on the terms no less favorable and conditions set forth in the aggregate Supplemental Term Sheet (the “Supplemental Credit Facility” and the documentation therefor, the “Supplemental Credit Agreement”) and such other terms as may be satisfactory to Acquiror than each of TWX and TWCable prior to the terms contained declaration of the Special Dividend. In addition, the parties shall take the foregoing actions in a manner so that, to the extent practicable, the execution, delivery and effectiveness of the Supplemental Credit Agreement shall take place concurrently with, or as soon as practicable after, the execution, delivery and effectiveness of the definitive documentation for the Special Dividend Financing Facility.
(c) Without affecting the rights or obligations of the Parties under Section 4.02(a), TWCable shall at all times prior to the payment of the Special Dividend use reasonable best efforts to maintain Special Dividend Availability of at least such amount that permits the payment of the Special Dividend (assuming the lenders under the Special Dividend Financing Facility and any Alternative Financing do not default on their contractual commitments).
(d) TWCable shall not make any optional reduction in the commitments available under the Bridge Commitment Letters. Acquiror Papers, the Special Dividend Financing Facility and/or any Alternative Financing, or agree to any amendment or modification of the Special Dividend Financing Facility and/or any Alternative Financing, which would in any such case have the effect of reducing the aggregate commitments available under all such financing arrangements taken together (including replacements being implemented or additional borrowings being completed (whether through a bond offering or otherwise) simultaneously with any such reduction, amendment or modification as permitted by Section 4.02(a)), without TWX’s prior written consent, such consent not to be unreasonably withheld.
(e) Following the Effective Date (as defined in the Supplemental Term Sheet) and until the Borrowing Date (as defined in the Supplemental Term Sheet), TWCable shall immediately notify Holdings if provide to TWX copies of all notices, communications, information and other materials sent or made available by TWCable to the administrative agent or to any Lenders lender under the definitive documentation in respect of the Special Dividend Financing Facility concurrently with the distribution thereof to the administrative agent or the lenders, including notices of any amendment to, modification or waiver of, or default or event of default, commitment reduction or prepayment under, the definitive documentation in respect of the Special Dividend Financing Facility, copies of financial statements and compliance certificates and copies of notices of material events.
(f) In the event that TWX or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties or other assets to any Person, then, in each such case, TWX shall notify Acquiror cause proper provision to be made so that the surviving corporation or Acquiror Sub entity or transferee shall expressly assume the obligations of TWX under the Supplemental Credit Facility or any definitive agreements entered into in connection therewith; provided, however, that it is amending any such assumption in connection with this clause (ii) shall not relieve TWX from any of its obligations under the Commitment LettersSupplemental Credit Facility.
Appears in 1 contract
Financing. (a) Acquiror Parent shall use, and Acquiror Sub shall cause its subsidiaries to use, their respective reasonable best efforts to:
(i) comply with and maintain in effect the Debt Financing and the Debt Commitment Letter;
(ii) satisfy, or cause their respective Representatives to satisfy on a timely basis all terms conditions to the Debt Financing contemplated by the Debt Commitment Letter, the Debt Fee Letter and Debt Financing Agreements that are within its control;
(iii) comply with their obligations under the Debt Commitment Letter to the extent the failure to comply with such obligations would adversely impact the amount or timing of the Commitment Letters and shall take all actions required on Debt Financing (taking into account the expected timing of the Marketing Period) or the availability of the Debt Financing prior to the Acceptance Date; and
(iv) enforce their part rights under the terms Debt Commitment Letter to the extent that the failure to enforce would adversely impact the amount or timing of the Commitment Letters, including without limitation, providing Debt Financing (taking into account the Lenders with all information that they may request and entering into appropriate loan agreements expected timing of the Marketing Period) or other agreements in order to obtain the Financingavailability of the Debt Financing at the Acceptance Date.
(b) In Unless, and to the extent, Parent or Purchaser has sufficient funds from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations under this Agreement, Parent shall use, and shall cause its subsidiaries to use, their respective reasonable best efforts to obtain the proceeds of the Debt Financing on the terms and conditions (including any “flex” provisions) described in the Debt Commitment Letter and the Debt Fee Letter, including using their respective reasonable best efforts to:
(i) negotiate and enter into definitive financing agreements with respect to the Debt Financing on terms and conditions not less favorable, in the aggregate, than those contained in the Debt Commitment Letter (including the “flex” provisions contained in the Debt Fee Letter) (the “Debt Financing Agreements”); and
(ii) in the event that all conditions to the Debt Financing have been satisfied and Parent is required to consummate the Offer, cause the Lenders and any other persons providing Debt Financing to fund the Debt Financing no later than the Acceptance Date.
(c) Parent shall not agree to or permit any amendment, supplement, termination, modification or replacement of, or grant any waiver of, any condition, remedy or other provision under the Debt Commitment Letter or the Debt Fee Letter without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed) if such amendment, supplement, termination, modification, replacement or waiver would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing from that contemplated by the Debt Commitment Letter delivered as of the date hereof to an amount such that the Transactions could not be consummated, (ii) impose any Lender shall notify Acquiror new or Acquiror Sub that it is withdrawing additional conditions or terminating the Commitment Letters otherwise expand, amend or that modify any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to materially delay or prevent the Offer or the availability of the Debt Financing or (iii) adversely impact in any material respect the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letters canLetter (it being understood and agreed that, in any event, (x) any Alternative Financing permitted under Section 7.15(d) shall not be satisfied deemed to be a replacement for the purposes of this sentence, (y) Parent may amend the Debt Commitment Letter to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement and will not be waived (z) no consent from the Company is required for implementation or exercise of any “flex” provisions provided in the Debt Fee Letter). Upon any amendment, supplement, modification or replacement of, or waiver of, the Debt Commitment Letter or the Debt Fee Letter in accordance with this Section 7.15(c) or Section 7.15(d), Parent shall promptly deliver a true and complete copy thereof (iisubject to applicable redactions in the case of the Debt Fee Letter) Acquiror has agreed to any amendment to the Company and references herein to “Debt Commitment Letters that establish additional conditions Letter” or the “Debt Fee Letter”, as applicable, shall include and mean such documents as amended, supplemented, modified, replaced or waived in compliance with this Section 7.15(c) or Section 7.15(d), and references to “Debt Financing” shall include and mean the financing contemplated by the Debt Commitment Letter as amended, supplemented, modified, replaced or waived in compliance with this Section 7.15(c) or Section 7.15(d), as applicable.
(d) Unless, and to the Lenders' extent, Parent or Purchaser has sufficient cash from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed under this Agreement, in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event that all or any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Commitment Letter for any reason under or the Debt Commitment LettersLetter shall be withdrawn, Acquiror terminated, repudiated or rescinded for any reason, (i) Parent shall promptly notify the Company and (ii) Parent shall use its commercially reasonable best efforts to, on a timely basis (taking into account the expected timing of the Marketing Period), arrange and obtain, and to secure all negotiate and enter into definitive agreements with respect to, alternative financing from the same or such alternative sources (the “Alternative Financing”) in an amount sufficient to pay the Required Amount (assuming the satisfaction of the Tender Offer Conditions and the conditions set forth in Section 8.1 and when taken together with other cash available to Parent and any remaining portion of the Debt Financing available to Parent or Purchaser); provided that Parent shall not be required to obtain Alternative Financing on terms no and conditions that are materially less favorable favorable, taken as a whole, to Parent or Purchaser, as applicable, than those in the aggregate to Acquiror than Debt Commitment Letter (including any “flex” provisions) that such Alternative Financing would replace. Notwithstanding the terms contained foregoing, no Alternative Financing may impose any new or additional conditions or otherwise expand, amend or modify any of the conditions set forth in the Debt Commitment LettersLetter as in effect on the date hereof in a manner that would reasonably be expected to materially delay or prevent the Offer. Acquiror In the event that Parent obtains commitments to receive any Alternative Financing in accordance with this Section 7.15(d), Parent or Purchaser, as applicable, shall immediately notify Holdings if deliver true and complete copies of any Lenders new Debt Commitment Letter and Debt Fee Letter (subject to applicable redactions).
(e) Parent or Purchaser, as applicable, shall notify Acquiror keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing (including any Alternative Financing). Without limiting the generality of the foregoing, Parent and Purchaser, as applicable, shall give the Company prompt notice of the receipt or Acquiror Sub delivery of any notice or other communication, in each case from any Lender with respect to (x) any actual or potential default under or breach of any provisions of the Debt Commitment Letter or Debt Financing Agreements by Parent or any withdrawal, termination, repudiation or rescission or threatened withdrawal, termination, repudiation or rescission thereof by any party to any of the Debt Commitment Letter or Debt Financing Agreements or (y) any material dispute or disagreement between or among parties to any of the Debt Commitment Letter or Financing Agreements with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the Acceptance Date in each case, that it would reasonably be expected to result in any portion of the Debt Financing reasonably required to fund the Required Amount being unavailable or materially delay or prevent the availability of the Debt Financing.
(f) Parent and Purchaser each acknowledges and agrees that the obtaining of the Debt Financing (including any Alternative Financing) is amending not a Tender Offer Condition or a condition to the Commitment LettersMerger Closing, and reaffirms its obligation to consummate the Transactions irrespective and independently of the availability of the Debt Financing (including any Alternative Financing), or the completion of any such issuance, subject to the applicable Tender Offer Conditions set forth on Annex A, the conditions to the Merger set forth in Article 8 and the provisions set forth in Section 10.6(c).
Appears in 1 contract
Financing. (a) Acquiror and Acquiror Sub shall comply The Purchaser will have at the Effective Time sufficient funds available to satisfy the aggregate consideration payable by the Purchaser pursuant to the Arrangement in accordance with all terms of the Commitment Letters and shall take all actions required on their part under the terms of this Agreement and the Commitment LettersArrangement, including without limitationand to satisfy all other obligations payable by the Purchaser pursuant to this Agreement and the Arrangement. The Purchaser delivered to the Company a complete and accurate copy of the facilities agreement and intercreditor agreement, providing and any relevant fee letters (with only the fee and any other economic provisions redacted, none of which would permit the Lenders with all information that they may request (as defined below) to reduce the amount or availability of the Financing except as permitted by Section 4.5) from the financial institutions (the “Lenders”) identified therein (the “Financing Documents”) pursuant to which such financial institutions have committed to provide, subject to the terms and entering into appropriate loan conditions therein, debt financing in the amounts set forth therein for the purpose of funding the Arrangement and the transactions contemplated by this Agreement (being collectively referred to as the “Financing”). The Financing Documents have not been amended or modified and the Lenders’ respective commitments contained in such letters and agreements have not been withdrawn, terminated, rescinded or other agreements reduced (except as permitted by Section 4.5) in order any respect by the Purchaser or, to obtain the knowledge of the Purchaser, the Lenders, as applicable. Assuming the Financing is funded pursuant to the Financing Documents, the net proceeds of the Financing.
(b) In , together with cash held by the Purchaser, will, in the aggregate be sufficient to enable the Purchaser to fund the Aggregate Consideration and make all other payments of any fees and expenses required to be paid in connection with the Arrangement and the Financing, and to pay amounts related to refinancing of any outstanding indebtedness of the Company contemplated by the Financing Documents. Assuming accuracy of the representations and warranties of the Company hereunder, as of the date hereof, no event that (i) has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of the Purchaser under the Financing Documents or, to the knowledge of the Purchaser, any Lender shall notify Acquiror other parties thereto, or Acquiror Sub that it is withdrawing a failure of any condition to the Financing or terminating otherwise result in any portion of the Commitment Letters or Financing contemplated thereby to be unavailable on the Effective Date. Assuming satisfaction of the conditions set forth in Section 6.1 and Section 6.2 of the Agreement, the Purchaser has no reason to expect that any of the conditions of the Purchaser to the Financing in the Commitment Letters cannot will fail to timely be satisfied and or that the full amount of the Financing will not be waived available on the Effective Date. There are no conditions precedent related to the funding of the full amount of the Financing, other than as expressly set forth in or contemplated by the Financing Documents. The Purchaser or its affiliates have paid in full any and all commitment fees or other fees required to be paid pursuant to the terms the Financing Documents on or before the date of this Agreement, and will pay in full any such amounts due on or prior to the Effective Time. There are no side letters or other agreements, contracts or arrangements to which the Purchaser is a party which are related to the funding of the full amount of the Financing other than as expressly set forth in or contemplated by the Financing Documents. Notwithstanding anything to the contrary contained herein, each Party agrees that a breach of this representation and warranty will not result in the failure of a condition precedent hereunder, if (notwithstanding such breach) (i) the Purchaser is willing and able to consummate the Arrangement on the Effective Date, and (ii) Acquiror has agreed funds sufficient to any amendment to consummate the Commitment Letters that establish additional conditions to transactions contemplated hereby at the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersEffective Time.
Appears in 1 contract
Samples: Arrangement Agreement (Merus Labs International Inc.)
Financing. Buyer has delivered to Seller true, complete and fully executed copies of (a) Acquiror a commitment letter (including all exhibits, schedules and Acquiror Sub shall comply with all terms of annexes thereto, the “Commitment Letters Letter”), and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In a fee letter (the event “Fee Letter”), in each case, dated on or prior to the date of this Agreement, between Buyer and the Financing Sources party thereto (the financing contemplated by the Commitment Letter and the Fee Letter, the “Financing”) (provided that the amount of fees, flex provisions, pricing terms, pricing caps and other economic terms set forth in any fee letter may be redacted (and none of the redacted provisions affect the availability of or reduce the aggregate principal amount of the Financing under the Financing Documents)) (collectively, the Commitment Letter and the Fee Letter, the “Financing Documents”). As of the date hereof, assuming the funding of the Financing on the Closing Date and the satisfaction of the conditions set forth in Article VII, the proceeds of the Financing, when funded in accordance with the Financing Documents, together with other funds available to Buyer will be, in the aggregate, sufficient for Buyer to have the necessary cash resources to pay the Purchase Price and meet all of Buyer’s financial obligations under this Agreement and the other Transaction Documents (collectively, the “Required Amount”). As of the date of this Agreement and other than as disclosed in the Commitment Letter, there are no, and there are not contemplated to be, any side letters or other legally binding agreements, contracts or arrangements that would reasonably be expected to affect (i) the conditions precedent to the funding of the Financing in an amount necessary to satisfy the Required Amount or (ii) any Lender shall notify Acquiror reduction in the aggregate principal amount of the Financing below an amount necessary to satisfy the Required Amount. As of the date of this Agreement, none of the Financing Documents have been amended, restated or Acquiror Sub that it otherwise modified or waived, and the respective commitments contained therein have not been withdrawn, rescinded, amended, restated or otherwise modified in any material respect, in each case, by Buyer, or to the knowledge of Buyer, any other party thereto in any respect. As of the date of this Agreement, each of the Financing Documents is withdrawing in full force and effect and constitutes the legal, valid and binding obligations of Buyer, and to the knowledge of Buyer, each of the other parties thereto, and enforceable against Buyer, and, to the knowledge of Buyer, each of the other parties thereto, in accordance with its terms (in each case, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or terminating similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). As of the Commitment Letters date of this Agreement, assuming the satisfaction of the conditions set forth in Article VII (A) no event has occurred which would reasonably be expected to constitute a breach or that default (or an event which with notice or lapse of time or both would constitute a default) or prevent any of the conditions to the Financing from being satisfied, in each case on the Commitment Letters canpart of Buyer, or, to the knowledge of Buyer, any other parties thereto, under the Financing Documents and (B) Buyer does not be satisfied and have any reason to believe that (x) any of the conditions to the Financing will not be waived satisfied, or (iiy) Acquiror the Financing in an amount necessary to satisfy the Required Amount will not be available to Buyer at Closing. Buyer has agreed fully paid, or caused to any amendment be fully paid, all commitment fees and other fees to the Commitment Letters that establish additional conditions extent required to be paid on or prior to the Lenders' obligations date of this Agreement in connection with the Financing. Notwithstanding anything in this Agreement to provide the Financing or otherwise makes it more difficult for Acquiror to obtain contrary, Buyer acknowledges and agrees that the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion obtaining of the Financing becomes unavailable is not a condition to Closing or the consummation of the Transaction. Notwithstanding anything to the contrary in this Agreement, Seller expressly agrees that a breach of this representation and warranty shall not result in a failure of a condition precedent set forth in Section 7.03 if, notwithstanding such breach, Buyer is willing and able to consummate the transactions contemplated hereby on the terms otherwise contemplated hereby on the Closing Date. . Assuming that (a) the most recent Business Financial Statements present fairly in all material respects the financial condition of the Seller as at the end of the periods covered thereby and the results of operations of the Seller for any reason under the Commitment Lettersperiods covered thereby in accordance with GAAP, Acquiror shall use its commercially reasonable efforts to secure all or such portion and (b) the consummation of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained set forth in the Commitment LettersLetter, then, immediately after giving effect to the transactions contemplated hereby, Buyer shall be, on a consolidated basis, solvent and shall: (x) be able to pay its debts as they become due; (y) own property that has a present fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities); and (z) have adequate capital to carry on its business. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or Acquiror Sub that it is amending defraud either present or future creditors of Buyer or Seller. In connection with the Commitment Letterstransactions contemplated hereby, Buyer has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.
Appears in 1 contract
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order Buyer will use its reasonable best efforts to obtain the --------- purchase price financing needed to effect the transaction contemplated by this Agreement and the Subsidiary Agreements (the "Financing.
") on commercially reasonable terms and to deliver to Seller as soon as reasonably practicable, but in no case later than June 2, 1995, after the date hereof executed customary commitment letters and letters setting forth the equity commitment required under the aforementioned commitment letters from responsible financial institutions for the Financing reasonably satisfactory to Seller (b) collectively, the "Financing Documentation"). In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any unavailable, regardless of the reason under the Commitment Letterstherefor, Acquiror shall Buyer will use its commercially reasonable best efforts to secure all or such obtain alternative financing from other sources on and subject to substantially the same terms and conditions as the portion of the Financing that has become unavailable. Buyer shall use its reasonable best efforts to (i) satisfy on or before the Closing all requirements of the definitive agreements pursuant to which the Financing will be obtained (the "Financing Agreements") which are conditions to closing all transactions constituting the Financing and to drawing down the cash proceeds thereunder; (ii) defend all lawsuits or other legal proceedings challenging the Financing Agreements or the consummations of the transactions contemplated thereby; and (iii) lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated thereby. Notwithstanding the foregoing, Buyer shall not be required to pay costs and expenses in connection with arranging the Financing materially in excess of the costs and expenses contemplated by the Financing Documen tation or agree to financing terms no less favorable that differ in a manner materially adverse to Buyer or any of its affiliates from those contemplated by the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersFinancing Documentation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wesley Jessen Holding Inc)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms Each of the Commitment Letters Purchasers shall use, and shall take cause their Affiliates to use, its commercially reasonable efforts to take, or cause to be taken, all actions required on their part under and to do, or cause to be done, all things necessary, proper or advisable to:
(i) maintain in full force and effect the Financing Commitment in accordance with the terms of and subject to the conditions thereof;
(ii) negotiate definitive agreements with respect to the Financing on the terms and conditions contemplated by the Financing Commitment Letters, including without limitation, providing in all respects;
(iii) satisfy on a timely basis all conditions set forth in the Lenders Financing Commitment (or definitive agreements entered into with all information that they may request respect to the Financing Commitment); and
(iv) consummate and entering into appropriate loan agreements or other agreements in order to obtain the Financing, prior to Closing, on the terms and conditions (including the flex provisions) set forth in the Financing Commitment and any related fee letter.
(b) In Each of the event that Purchasers shall, and shall cause their Affiliates to:
(i) enforce its rights under the Financing Commitment in the event of a breach thereof by the Financing sources thereunder;
(ii) comply with their respective obligations under the Financing Commitment; and
(iii) without the consent of the Parent, not permit any Lender shall notify Acquiror amendment or Acquiror Sub modification to be made to, or consent to any waiver of any provision or remedy under, the Financing Commitment or any related fee letters, if such amendment, modification or waiver:
(A) reduces the aggregate amount of the Financing from that it is withdrawing contemplated in the Financing Commitment;
(B) imposes new or terminating the Commitment Letters additional conditions or that otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner adverse in any respect to the Commitment Letters cannot Purchasers, the Parent or the Sellers;
(C) amends or modifies any other terms in a manner that would reasonably be satisfied and will not be waived expected to (x) delay or prevent the Closing or (iiy) Acquiror has agreed to any amendment to make the Commitment Letters that establish additional conditions to the Lenders' obligations to provide timely funding of the Financing or otherwise makes it more difficult for Acquiror satisfaction of the conditions to obtain obtaining the Financing less likely to occur;
(unless Holdings has agreed in writing that Acquiror can effect any such amendmentD) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In adversely impacts the event all or any portion ability of the Purchasers, the Parent or the Sellers to enforce their respective rights against the other parties to the Debt Financing becomes unavailable for Commitment; or
(E) imposes any reason under obligations on the Commitment Letters, Acquiror shall use Parent or its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersAffiliates.
Appears in 1 contract
Financing. (a) Acquiror Buyer shall use commercially reasonable efforts to (i) maintain in effect the Commitment Letters and Acquiror Sub to satisfy on a timely basis all the conditions to obtaining the financing for the transactions contemplated in this Agreement (the “Financing”) set forth therein, (ii) enter into definitive financing agreements with respect to the Financing as contemplated by the Commitment Letters (including by consummating the equity financing pursuant to the terms and conditions of the Equity Commitment Letter), (iii) enter into definitive financing agreements 40 Table of Contents with respect to the Financing as contemplated by the Debt Commitment Letter and (iv) consummate the Financing at the Closing. Buyer shall comply not permit any amendment, modification or waiver to be made to the Commitment Letters without first consulting with all terms the Company, and will obtain the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) prior to agreeing to any such amendment, modification or waiver. To the extent actually known by Buyer, Buyer will keep the Company (x) fully informed of any material breaches by any party of the Commitment Letters or any termination of the Commitment Letters and shall take all actions required on their part under (y) upon the terms request of the Commitment LettersCompany at any time, including without limitation, providing reasonably informed of the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain status of the Financingfinancing process.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating If the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")are terminated, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Buyer shall use its commercially reasonable efforts to secure all enter into commitments for alternative financing with other persons (it being understood that Buyer shall provide prompt notice to the Company upon obtaining any such alternative financing commitments); provided, that Buyer shall be under no obligation to obtain or such portion of the Financing on seek to obtain any financing commitment containing terms no or funding conditions less favorable in the aggregate to Acquiror Buyer than the terms contained those included in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Letters.
Appears in 1 contract
Samples: Master Asset Purchase Agreement
Financing. Prior to the Closing, the Seller shall use its reasonable best efforts to provide in a timely manner to the Buyer or its Financing Sources, and shall use its reasonable best efforts to cause their senior management and representatives, including legal and accounting representatives, to provide to the Buyer, in each case at the Buyer’s sole expense, all cooperation reasonably requested by the Buyer or its Financing Sources that is necessary in connection with the arrangement of any financing to be obtained by the Buyer in connection with any debt financing that the Buyer may elect to pursue in connection with the transactions contemplated by this Agreement (the “Financing“), including (a) Acquiror furnishing the Buyer and Acquiror Sub shall comply its Financing Sources as promptly as practicable with all terms of financial and other pertinent information regarding the Commitment Letters Seller as may be reasonably requested by the Buyer or its Financing Sources and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order is customary for financings similar to obtain the Financing.
; (b) In participating in a reasonable number of meetings in connection with the event Financing; (c) delivery of customary authorization letters, confirmations and undertakings; (d) preparation and delivery as promptly as practicable to the Buyer and its Financing Sources of the information and deliverables required in connection with the Financing; (e) requesting that their independent accountants cooperate with the Financing; and (if) facilitating the pledging of collateral (including obtaining any Lender payoff letters and other cooperation in connection with the repayment or requirement of existing indebtedness and the release and termination of any and all related Liens); provided, that nothing herein shall notify Acquiror require such cooperation to the extent it would interfere unreasonably with the business or Acquiror Sub operations of the Seller. The Seller shall not be required to take any action that it is withdrawing would subject them to actual or terminating potential liability, to bear any cost or expense (other than reasonable out-of-pocket costs) or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Commitment Letters Financing or that any of the conditions foregoing prior to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (KAR Auction Services, Inc.)
Financing. (a) Acquiror Buyer shall, and Acquiror Sub shall comply with cause its Affiliates to, use commercially reasonable efforts to take, or cause to be taken, all appropriate action and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be required, to obtain the Financing as promptly as reasonably practicable on the terms (including the “market flex” provisions) and subject only to the conditions contained in the Financing Commitments (and, if applicable in the case of the Commitment Letters Alternate Financing, only those conditions specified in the Financing Commitments as being applicable to the Alternate Financing), including to (i) negotiate and enter into definitive agreements with respect to the Financing on the terms (including the “market flex” provisions) and subject only to the conditions contained in the Financing Commitments (and, if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as being applicable to the Alternate Financing) or on other terms acceptable to Buyer so long as such definitive agreements (A) do not contain any additional or modified conditions or other contingencies to the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement (and, if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as of the date of this Agreement as being applicable to the Alternate Financing), (B) are in a form that is otherwise not reasonably likely to impair or delay the funding of the Financing or the Principal Closing and (C) do not reduce the aggregate amount of the Financing set forth in the Financing Commitments as of the date of this Agreement (or, if applicable in the case of the Alternate Financing, reduce the aggregate amount of Financing contemplated by the Alternate Financing Commitments as set forth in the Financing Commitments as of the date of this Agreement), (ii) satisfy, and cause its Subsidiaries to satisfy, on a timely basis all conditions applicable to Buyer or its Subsidiaries contained in the Financing Commitments (or, if applicable in the case of the Alternate Financing, those conditions contained in the Alternate Financing Commitments) and (iii) consummate the Financing contemplated by the Financing Commitments (or the Alternate Financing Commitments, if applicable) at the Principal Closing. Buyer shall, and shall take all actions required on their part cause its Subsidiaries to, refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any of the conditions contained in the Financing Commitments (or the Alternate Financing Commitments, if applicable) or in any definitive agreement related to the Financing. Without limiting the generality of the foregoing, Buyer shall not have drawn more than $600,000,000 under the terms revolving credit facility under the Existing Credit Agreement (as defined in the Financing Commitments) as of the Commitment LettersClosing (without giving effect to any amounts drawn to fund the Cash Consideration).
(b) For the avoidance of doubt and notwithstanding anything to the contrary in this Section 6.06, including without limitationBuyer acknowledges and agrees that its obligation to consummate the Transactions on the terms and subject to the conditions set forth herein are not conditioned upon the availability or consummation of the Financing, providing the Lenders with all information availability of any replacement commitments or receipt of the proceeds therefrom and, accordingly, the parties hereto agree that they may request and entering into appropriate loan agreements a failure of Buyer to close the Transactions due to the failure or inability to consummate the Financing constitutes a breach of this Agreement.
(c) Buyer shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitments (or the Alternate Financing Commitments, if applicable) or the definitive agreements relating to the Financing except (i) with Seller’s prior written consent, which consent shall not be unreasonably withheld, (ii) to the extent such modification or waiver is not materially adverse to Seller or (iii) to add additional Financing Sources who had not executed the Financing Commitments as of the date hereof and amend the allocation of economics or other related terms with respect to the existing and additional Financing Sources, provided that, in order the case of clauses (ii) and (iii), such amendment, supplement, modification or waiver does not (A) reduce the aggregate amount of any portion of the Financing (including by increasing the amount of fees to obtain be paid or original issue discount as compared to the fees and original issue discount contemplated by the Financing Commitments on the date hereof unless the Financing is increased by a corresponding amount), (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that could reasonably be expected to materially delay or prevent the funding of the Financing (or satisfaction of the conditions to the Financing) at the Principal Closing or (C) adversely impact the ability of Buyer or any of its Affiliates to enforce its rights against the other parties to the Financing Commitments (or the Alternate Financing Commitments) or the definitive agreements with respect to the Financing.
(bd) If any portion of the Financing becomes unavailable on the terms and conditions (including the “market flex” provisions) contained in the Financing Commitments (or the Alternate Financing Commitments, if applicable), Buyer shall promptly notify Seller, and Buyer shall, and shall cause its Affiliates to, use commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such event, replacement commitments on terms that will enable Buyer to consummate the Transactions and that are not less favorable in the aggregate to Buyer than those contained in the Financing Commitments; provided that such replacement commitments shall not (i) be subject to any additional or modified conditions or other contingencies to the funding of the Financing other than those contained in the Financing Commitments or (ii) otherwise be reasonably likely to impair or delay the funding of the Financing or the Principal Closing. Buyer shall deliver to Seller complete and correct copies of all amendments, supplements, other modifications or agreements (including Redacted Fee Letters) pursuant to which any amended, supplemented, modified or replacement commitments shall provide Buyer with any portion of the Financing.
(e) Seller shall, and shall cause its Affiliates to, and shall cause its and their employees to, use commercially reasonable efforts to provide, and shall direct its and their accountants, legal counsel, other advisors and representatives to use commercially reasonable efforts to provide, all cooperation in connection with the arrangement of the Financing as may be reasonably requested by Buyer, including delivering to Buyer the Marketing Financial Information and using commercially reasonable efforts to (i) deliver to Buyer (A) the financial information described in Schedule 6.06(e) by the dates indicated on Schedule 6.06(e) and (B) by the date that is fifteen (15) calendar days after the last day of each calendar month, a statement of sales with respect to the Business on a monthly basis consistent with such financial information previously provided to Buyer by Seller, (ii) upon reasonable notice, cause Employees of the Business to participate in a reasonable number of meetings and presentations with prospective lenders and investors, and sessions with the ratings agencies contemplated by the Financing Commitments, (iii) reasonably assist Buyer and the Financing Sources in their preparation of (A) any bank information memoranda and related lender presentations, and similar documents required in connection with the Financing, and (B) materials for rating agency presentations (provided that Buyer acknowledges and agrees that no such memoranda, documents, presentations or other materials prepared in connection with the Financing may include any report or opinion of Seller’s independent auditors or otherwise include any reference to Seller’s independent auditors), (iv) reasonably assist Buyer in connection with the preparation of any pledge and security documents and other definitive financing documents as may be reasonably requested by Buyer or the Financing Sources (including using reasonable best efforts to obtain title and lien searches) and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Financing, (v) provide Buyer all documentation and other information with respect to Seller and its Subsidiaries as shall have been reasonably requested in writing by Buyer at least ten (10) business days prior to the Principal Closing Date that is required in connection with the Financing by U.S. regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent required under the Financing Commitments and applicable to Seller and its Subsidiaries, and (vi) provide executed authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about Seller or its Subsidiaries or securities and executing ratings agency engagement letters as required in connection with the Financing (provided, that Seller shall not be required to pay any cost or expenses relating to rating agency engagement letters). Notwithstanding the foregoing, (i) such requested cooperation shall not unreasonably interfere with the ongoing operations of Seller and its Affiliates and (ii) in connection with such requested cooperation, Seller and its Affiliates shall not be required to provide any financial statements or financial information in respect of the Business other than the Marketing Financial Information, and to use commercially reasonable efforts to provide to Buyer (A) the financial information described in Schedule 6.06(e) by the dates indicated on Schedule 6.06(e) and (B) by that date that is fifteen (15) calendar days after the last day of each calendar month, a statement of sales with respect to the Business on a monthly basis consistent with such financial information previously provided to Buyer by Seller. Buyer shall, promptly upon request by Seller, reimburse Seller for all out-of-pocket costs incurred by Seller or any of its Affiliates in connection with such cooperation. In the event that Buyer is provided with any report or opinion of Seller’s independent auditors, Buyer shall not provide such report or opinion or any portion thereof to any of the Financing Sources unless such Financing Sources have executed and delivered to Seller and Seller’s independent auditors an acknowledgment substantially in the form previously provided to Buyer. Buyer and its Affiliates shall, on a joint and several basis, indemnify and hold harmless Seller and its Affiliates from and against any Damages suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith. Seller shall have the right to consent to the use of the Transferred Trademarks (but not any other trademarks or logos of Seller or any of its Affiliates) in connection with the Financing (which consent shall not be unreasonably withheld, conditioned or delayed); provided nothing in this sentence shall restrict Buyer from using Seller trademarks in a descriptive manner to describe the Transactions.
(f) Buyer shall keep Seller informed on a timely basis of the status of the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice of (i) any Lender shall notify Acquiror default or Acquiror Sub that it is withdrawing breach (or terminating any event that, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach) by any party under the Commitment Letters Financing Commitments (or that any of Alternate Financing Commitment, if applicable) or the conditions definitive agreements relating to the Financing of which Buyer becomes aware, (ii) any termination of the Financing Commitments (or any Alternate Financing Commitment, if applicable), (iii) the receipt of any written notice or other written communication from any Person party to a Financing Commitment (or any Alternate Financing Commitment, if applicable) with respect to any (x) actual or potential default, breach, termination or repudiation of any Financing Commitment (or any Alternate Financing Commitment, if applicable), any definitive agreement relating to the Financing or any provision of the Financing Commitments (or the Alternate Financing Commitments, if applicable), in each case by any party thereto, or (y) material dispute or disagreement between or among any parties to any Financing Commitment (or any Alternate Financing Commitment, if applicable), with respect to the Commitment Letters cannot obligation to fund the Financing, including any condition with respect to the obligation to fund the Financing, or the amount of Financing to be satisfied funded at the Principal Closing Date, and (iv) if for any reason Buyer believes in good faith that it will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable on the terms, in the manner or from the sources contemplated by the Financing Commitments (or the Alternate Financing Commitments, if applicable). As soon as reasonably practicable, and in any event, within two (2) business days after the date Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (i), (ii), (iii) or (iv) of the immediately preceding sentence.
(g) Buyer acknowledges that the information being provided to it in connection with the Financing is subject to the terms of Section 6.05. With respect to information disclosed to any rating agency (the “Confidential Rating Agency Information”), Buyer shall inform such rating agency of the confidential nature of the Confidential Rating Agency Information and xxxx any such information provided in writing to such rating agency as “confidential”. Buyer shall be responsible for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or breach of this covenant by any such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersrating agency.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integra Lifesciences Holdings Corp)
Financing. (a) Acquiror Purchaser shall use, and Acquiror Sub shall comply with all terms cause its Affiliates to use, reasonable best efforts (taking into account the expected timing of the Commitment Letters and shall take Marketing Period) to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on their part under the terms of and subject only to the Commitment conditions (including the market flex provisions) set forth in the Financing Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order using reasonable best efforts to obtain the Financing.
(b) In the event that (i) maintain in effect and comply with the Financing Letters, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions (including the market flex provisions) set forth in the Financing Letters (or on terms not materially less favorable to Purchaser than the terms and conditions (including market flex provisions) set forth in the Financing Letters), (iii) satisfy (and cause its Affiliates to satisfy) (or, if deemed advisable by Purchaser, seek the waiver of) on a timely basis all conditions applicable to Purchaser and its Affiliates in the Financing Letters and the definitive agreements relating to the Financing, (iv) consummate the Financing at or prior to the Closing, including using its (and causing its Affiliates to use) reasonable best efforts to cause the Lenders and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights and remedies under the Financing Letters and the definitive agreements relating to the Financing and (vi) comply with its covenants and other obligations under the Financing Letters and the definitive agreements relating to the Financing. Purchaser shall not, without the prior written consent of Seller, agree to or permit any Lender shall notify Acquiror termination of or Acquiror Sub that it is withdrawing amendment or terminating modification to be made to, or grant any waiver of any provision under, the Commitment Financing Letters or that the definitive agreements relating to the Financing if such termination, amendment, modification or waiver would (A) reduce (or could have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount below the Required Amount, (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions to the Financing, or otherwise expand, amend or modify any other provision of the Financing Letters in a manner that could reasonably be expected to delay or prevent or make less likely to occur the Commitment Letters cannot be satisfied and will not be waived funding of the Financing (or (ii) Acquiror has agreed to any amendment to satisfaction of the Commitment Letters that establish additional conditions to the Lenders' obligations Financing) on the Closing Date or (C) adversely impact the ability of Purchaser to provide enforce its rights and remedies against any other party to any Financing Letter or the definitive agreements relating to the Financing. Purchaser shall promptly deliver to Seller copies of any amendment, modification or waiver to or under any Financing Letter or otherwise makes it more difficult for Acquiror the definitive agreements relating to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")Financing. Purchaser will fully pay, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In or cause to be paid, all commitment and other fees under or arising pursuant to the event all or any portion of the Financing becomes unavailable for any reason under the Debt Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersLetter as and when they become due.
Appears in 1 contract
Financing. (a) Acquiror Seller shall, and Acquiror Sub shall comply cause its Representatives to, cooperate as reasonably requested by Buyer and take such actions as Buyer may reasonably request in connection with all terms the procurement and consummation of the Commitment Letters and shall take all actions required on their part under the terms financing by Buyer or its Affiliates of the Commitment Letterstransaction contemplated by this Agreement (the “Financing”), including without limitation, which cooperation shall include provision of such information regarding the Business as is reasonably requested by the financial institutions providing the Lenders Financing, review and consultation with respect to the preparation of all information agreements, offering memoranda and other documentation (including review of schedules for completeness) required in connection with the Financing and attendance and participation at meetings by telephone and in person with respect to syndication and marketing as is reasonably requested by Buyer; provided, however, that they may request and entering into appropriate loan agreements Seller will not be required to pay any commitment or other agreements similar fee or incur any other liability, other than out-of-pocket expenses incidental to such cooperation, in order to obtain connection with the Financing. To the extent not provided prior to the date of this Agreement, Seller shall deliver to Buyer, within five Business Days of such data being available to Seller’s management, monthly financial data generated by in respect of the operation of the Business by Seller’s internal accounting systems in respect of the Business for use by senior and financial management for any fiscal month ending after the date of the most recently ended fiscal quarter of Seller for which financial statements are available and on or prior to 30 days prior to the Closing Date. The closing of the Financing shall not be a condition to the Closing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it the Equity Commitment Letter is withdrawing or terminating the Commitment Letters or that any of the conditions terminated prior to the Financing Closing, Buyer shall promptly obtain a renewal of, or a substitute for, the Equity Commitment Letter on terms and conditions comparable in all material respects to the terms and conditions contemplated in the Equity Commitment Letters cannot be satisfied and will not be waived Letter or (ii) Acquiror has agreed on more favorable terms to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination EventBuyer. In the event all or any portion of the Financing funds to be provided under the Equity Commitment Letter becomes unavailable for on terms and conditions comparable in all material respects to the terms and conditions contemplated in the Equity Commitment Letter, Buyer shall arrange to obtain any reason such portion from alternative sources on comparable or more favorable terms to Buyer. Buyer shall give Seller prompt notice upon becoming aware of any breach by any party of the Equity Commitment Letter or Debt Commitment Letter or any purported termination of the Equity Commitment Letter or Debt Commitment Letter. Buyer shall not permit any material amendment or modification to be made to, or any waiver of any provision or remedy under, the Equity Commitment Letter if such amendment, modification, waiver or remedy reduces the aggregate amount of the funds to be provided under the Equity Commitment Letters, Acquiror shall use its commercially reasonable efforts Letter or is adverse to secure all or such portion the interests of the Financing on terms no less favorable Seller in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersother respect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Public Service Co of New Mexico)
Financing. (a) Acquiror Subject to the other terms and Acquiror Sub conditions of this Agreement, the Buyer shall comply with all terms of the Commitment Letters and shall take use reasonable best efforts to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Financing on their part under the terms of and conditions described in the Equity Commitment Letters, including without limitation, providing using reasonable best efforts to (x) satisfy on a timely basis all conditions to funding in the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Equity Commitment Letters or that and any of the conditions definitive agreements to be entered into pursuant thereto and (y) negotiate, execute and deliver definitive agreements with respect to the Financing in consistent with the terms and conditions contemplated by the Equity Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination EventLetters. In the event any portion of the Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Equity Commitment Letters, and such portion is reasonably required to fund any of the payments described herein and any other fees, expenses and other amounts required to be paid by the Buyer related to the Financing or the other Transactions, (A) the Buyer shall promptly notify the Seller and (B) the Buyer shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms and conditions not materially less favorable, taken as a whole, to the Buyer (the “Alternative Financing”), in an amount sufficient to consummate the Transactions as promptly as practicable following the occurrence of such event. The Buyer shall promptly notify the Seller in writing (A) if to the Knowledge of the Buyer there exists any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to the Equity Commitment Letters, (B) of the receipt by the Buyer of any written notice or other written communication from Financing Partner or its representatives with respect to any actual breach, default, termination or repudiation by any party to the Equity Commitment Letters or (C) if, for any reason, the Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Financing becomes unavailable for contemplated by the Equity Commitment Letters on the terms described therein. The Buyer shall not consent to (a) any reason under amendment or modification to, or any waiver of any provision under, the Equity Commitment LettersLetters or any definitive agreements relating to the Financing if such amendment, Acquiror modification or waiver (i) decreases the aggregate amount of the Financing, (ii) imposes new or additional conditions or otherwise expands any of the conditions to the receipt of the Financing or (iii) would otherwise reasonably be expected to (A) prevent the Closing, (B) make the funding of the Financing materially less likely to occur or (C) adversely impact the ability of the Buyer to enforce its rights against the other parties to the Equity Commitment Letters or any definitive agreements with respect thereto without prior consent of the Seller. The Buyer shall furnish to the Seller a copy of any amendment, modification, waiver or consent of or relating to the Equity Commitment Letters promptly upon execution thereof. The Buyer shall use its commercially reasonable best efforts to secure all or such portion maintain the effectiveness of the Financing on terms no less favorable in Equity Commitment Letters until the aggregate Transactions are consummated. For purposes of this Agreement, references to Acquiror than “Financing” shall include the terms contained in Alternative Financing, and references to the “Equity Commitment Letters. Acquiror ” shall immediately notify Holdings if include any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersequity commitment letter for an Alternative Financing.
Appears in 1 contract
Samples: Interest and Asset Purchase Agreement (SVB Financial Group)
Financing. (a) Acquiror and Acquiror Sub Buyer shall comply with all terms of the Commitment Letters and shall take use its reasonable best efforts to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on their part under the terms of and conditions described in the Commitment LettersFinancing Letter, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order using reasonable best efforts to obtain the Financing.
(b) In the event that (i) maintain in effect the Financing Letter, (ii) negotiate definitive agreements with respect to the Financing on terms and conditions (including, as necessary, the “flex” provisions contained in any Lender shall notify Acquiror or Acquiror Sub related Fee Letter) contemplated by the Financing Letter (any such agreements, the “Definitive Financing Agreements”) and deliver to Seller a correct and complete copy thereof as promptly as practicable after execution thereof, (iii) satisfy on a timely basis all conditions that it is withdrawing or terminating the Commitment Letters or that any of the conditions are applicable to the Financing in the Commitment Letters cannot Financing Letter or the Definitive Financing Agreements, as applicable, and comply with its obligations thereunder, (iv) obtain such third-party consents as may be satisfied reasonably required in connection with the Financing, and will not be waived (v) upon the satisfaction or (ii) Acquiror has agreed to any amendment waiver of such conditions, consummate the Financing at or prior to the Commitment Letters Closing. In furtherance and not in limitation of the foregoing, in the event that establish additional all conditions to the Lenders' obligations Financing Letter (or if Definitive Financing Agreements have been entered into, to provide such respective Definitive Financing Agreements) have been satisfied, and all of the conditions set forth in Sections 5.1 and 5.2 have been satisfied or waived (other than those conditions to be satisfied or waived by action taken at the Closing), Buyer shall use its reasonable best efforts to cause the respective lenders providing such Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement. Buyer shall have the right from time to time to amend, replace, supplement or otherwise makes it more difficult for Acquiror to obtain modify the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event Letter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to the Financing Letter shall not (A) materially reduce the aggregate amount of the Financing, (B) expand upon in any material respect the conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Financing Letter, or (C) prevent, impede or delay the consummation of the transactions contemplated by this Agreement; provided, further, that notwithstanding the foregoing, Buyer may amend the Financing Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement. Buyer shall deliver to Seller copies of any such amendment, replacement, supplement or modification. If any portion of the Financing becomes unavailable for on the terms and conditions (including the “flex” provisions contained in any reason under Fee Letter) contemplated in the Commitment LettersFinancing Letter or the Definitive Financing Agreements, Acquiror Buyer shall promptly notify Seller and shall use its reasonable best efforts to arrange and obtain alternative financing from the same and/or alternative sources on terms and conditions not less favorable, in the aggregate, to Buyer than those contained in the Financing Letter in an amount sufficient to consummate the transactions contemplated by this Agreement (“Alternative Financing”), upon terms and conditions which would not have any of the effects specified in clauses (A), (B), and (C) of this Section 4.9(a) as promptly as reasonably practicable following the occurrence of such event. Buyer shall give Seller prompt oral and written notice of the receipt of any written notice or other written communication from any financing source with respect to any breach, default, termination or repudiation by any party to the Financing Letter or any Definitive Financing Agreements of any provision thereof. Buyer shall keep Seller reasonably informed on a reasonably current basis of the status of its efforts to consummate the Financing. Notwithstanding the foregoing, compliance by Buyer with this Section 4.9Error! Reference source not found. shall not relieve Buyer of its obligation to consummate the transaction contemplated hereby, whether or not the Financing (or any Alternative Financing) is available.
(b) Prior to the Closing, Seller shall, and shall cause the Company and its representatives to use commercially reasonable efforts to secure all or such portion cooperate with Buyer in connection with the arrangement of the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and provided that such requested cooperation is of the type customarily provided in connection with similar financings) by: (i) participating at reasonable times in a reasonable number of meetings, presentations, road shows, drafting sessions and due diligence sessions (including sessions with rating agencies), (ii) reasonably assisting with the preparation of materials for rating agency presentations, bank information memoranda, offering documents, private placement memoranda and prospectuses; provided that any such rating agency presentations, bank information memoranda, offering documents, private placement memorandum and prospectuses need not be issued by Seller or the Company, (iii) (A) using commercially reasonable efforts to provide the audited financial statements of the Company and unaudited financial statements of the Company for any interim periods following the Company’s last completed fiscal year and ending on terms no less favorable the last day of any quarterly period that is more than forty five days prior to the Closing Date (which interim statements shall have been reviewed by the Company’s independent accountants in accordance with SAS 100), in each case in the aggregate form and for such periods as would be required to Acquiror than be included in a registration statement on Form S-1 filed with the terms contained SEC by Buyer Parent or its Subsidiaries in connection with the acquisition of the Company pursuant to Rule 3-05 under Regulation S-X under the Securities Act for a public offering of debt or equity securities of Buyer Parent or its Subsidiaries (assuming for this purpose that the acquisition of the Company was completed at least seventy-five days prior to the initial filing of such registration statement), (B) any other financial information with respect to the Company required to be included in such registration statement under Regulation S-K under the Securities Act and (C) drafts of customary comfort letters from the Company’s auditors, including customary negative assurance comfort with respect to periods following the end of the latest fiscal year or fiscal quarter for which historical financial statements are included in the Commitment LettersRequired Information (as defined below), and confirmation by such auditors that they are prepared to issue any such comfort letter upon any pricing date occurring during the Marketing Period (all such information required to be furnished pursuant to this clause (iii) is referred to as “Required Information”), (iv) using commercially reasonable efforts to furnish Buyer and its financing sources as promptly as reasonably practicable with financial and other pertinent information regarding the Company as may be reasonably requested by Buyer or its financing sources, including any financial information with respect to the Company (including the financial statements referenced in clause (iii)(A) above) that is reasonably requested by Buyer and its financing sources to be included in either a registration statement filed under the Securities Act or an offering memorandum in connection with a private placement of debt securities by Buyer Parent or its Subsidiaries under Rule 144A of the Securities Act and information related to the Company required by regulatory authorities including under applicable “know your customer” and anti money laundering rules and regulations, including the Patriot Act and (v) using commercially reasonable efforts to obtain legal opinions, surveys and landlord estoppel letters as reasonably requested by Buyer or their financing sources, provided that, the foregoing notwithstanding, (A) no obligation of the Company under any such agreement, certificate, document or instrument shall be effective until the Closing, (B) the pre-Closing managers of the Company shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained, (C) the Company shall not be required to execute prior to the Closing any Definitive Financing Agreements or legal opinions or other documents in connection with the Financing, and (D) except as expressly provided above, the Company shall not be required to take any corporate actions prior to the Closing to permit the consummation of the Financing. Acquiror Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller or the Company in connection with such cooperation, and shall immediately notify Holdings if indemnify and hold harmless Seller, its Subsidiaries and their respective representatives from and against any Lenders and all losses, damages, claims, costs or expenses suffered or incurred by any of them of any type in connection with the arrangement of any Financing and any information used in connection therewith, and the foregoing obligations shall notify Acquiror survive termination of this Agreement. Seller hereby consents to the use of the Company’s logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or Acquiror Sub disparage Seller or the Company or the reputation or goodwill of Seller or the Company and its or their marks. All non-public or other confidential information provided by the Company pursuant to this Section 4.9(b) shall be kept confidential in accordance with the Confidentiality Agreement, except that it is amending Buyer shall be permitted to disclose such information: (i) to potential sources of capital and to rating agencies and prospective lenders and investors during syndication of the Commitment LettersFinancing, subject to the potential sources of capital, prospective lenders and investors entering into customary confidentiality undertakings with respect to such information (in the context of a private placement of debt securities under Rule 144A of the Securities Act, such confidentiality undertakings as are customary in such a private placement) with Seller and the Company being beneficiaries of such confidentiality undertakings; or (ii) as required by Rule 3-05 of Regulation S-X under the Securities Act to be included in a registration statement on Form S-1 filed with the SEC by Buyer Parent or its Subsidiaries in connection with the acquisition of the Company for a public offering of debt securities of Buyer Parent or its Subsidiaries (assuming for this purpose that the acquisition of the Company was completed at least seventy-five days prior to the initial filing of such registration statement), provided that any such information complies with Regulation FD; or (iii) in the context of a private placement of debt securities under Rule 144A of the Securities Act, pursuant to Regulation FD under the Exchange Act so that potential investors are not in possession of material non-public information during the Financing process.
Appears in 1 contract
Financing. (a) Acquiror Each of Parent and Acquiror Sub HoldCo shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions set forth in the Commitment Letter as promptly as practicable after the date hereof, including using its reasonable best efforts to (i) maintain in effect the Commitment Letter until the Mergers and the other transactions contemplated by this Agreement are consummated (it being acknowledged that the commitments under the Commitment Letter may be reduced or terminated in accordance with the Commitment Letter in effect on the date hereof (provided that the aggregate proceeds of the Debt Financing, together with cash, cash equivalents and short-term marketable securities held by the Parent Entities, as of the First Effective Time, will be sufficient to enable Parent and/or HoldCo to pay all amounts required to be paid by them in cash in connection with the transactions contemplated by this Agreement, including the Preferred Stock Consideration and all payments, fees and expenses payable by them arising out of the consummation of the transactions contemplated by this Agreement, the Company Notes and the Credit Agreement)) and (ii) unless Parent or HoldCo shall have reduced the commitments under the Commitment Letter to zero in accordance with the immediately preceding clause (i), (x) timely negotiate definitive agreements with respect to the facilities contemplated by the Commitment Letter on the terms and conditions set forth therein (or other terms agreed to by Parent, HoldCo and the lenders, subject to the restrictions on amendments to the Commitment Letter set forth below), (y) satisfy or cause to be waived on a timely basis all conditions applicable to Parent or HoldCo set forth in the Commitment Letter or such definitive agreements that are within its control and otherwise comply with all terms its obligations thereunder and (z) upon the satisfaction or waiver of such conditions, consummate the Commitment Letters Debt Financing. Parent and HoldCo shall take any and all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order necessary to obtain the confirmation of the counterparties to the Commitment Letter that such counterparties have completed and are satisfied with the results of all client identification procedures with respect to HoldCo that are required by such counterparties under the Commitment Letter as promptly as practicable. In the event that all conditions set forth in Section 9.01 and Section 9.02 have been satisfied or waived or, upon funding of the Debt Financing, shall have been satisfied or waived, Parent and HoldCo shall, and shall cause their Subsidiaries to, use reasonable best efforts to cause the Financing Sources providing the Debt Financing to fund on the Closing Date the Debt Financing. Parent and/or HoldCo shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Commitment Letter.
(b) In Notwithstanding the event that (i) foregoing, Parent and/or HoldCo may, in its sole discretion and at any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")time, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event replace all or any portion of the Debt Financing becomes unavailable provided for in the Commitment Letter with one or more commitments from financial institutions to provide an equal or greater amount of debt financing to be made available on or prior to the Closing Date without the prior written approval of the Company, provided, that Parent and HoldCo shall not, without the Company’s prior written consent (which consent shall not be unreasonably withheld or delayed), permit any reason such replacement which would (A) except as provided for in clause (i) of paragraph (a) above, reduce the aggregate cash amounts of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount) unless the aggregate amount of the Debt Financing, together with cash, cash equivalents and short-term marketable securities following such reduction is sufficient to pay for all amounts required to be paid by Parent or HoldCo in cash in connection with the Company Notes and Credit Agreement (to the extent consents or waivers pursuant to each are not obtained to the extent required) and the transactions contemplated by this Agreement, including the Preferred Stock Consideration and all payments, fees and expenses payable by them arising out of the consummation of the transactions contemplated by this Agreement or (B) expand, amend, modify or waive any provision of the Commitment Letter in a manner that in any such case would reasonably be expected to (1) materially delay or make materially less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, (2) materially adversely impact the ability of Parent or HoldCo to enforce its rights against the Financing Sources or any other parties to the Commitment Letter or (3) materially adversely affect the ability of Parent, HoldCo or any of their Subsidiaries to timely consummate the transactions contemplated by this Agreement. Parent and HoldCo shall not amend, modify or agree to any waiver under the Commitment LettersLetter without the prior written approval of the Company if such amendment, Acquiror modification or waiver would have any of the effects described in clauses (A) or (B) above; provided, that Parent and HoldCo may modify, supplement or amend the Commitment Letter to (x) add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement and (y) implement or exercise any “market flex” provisions contained in the fee letter related to the Commitment Letter. Upon any replacement contemplated by this Section 7.07(b), (i) the definition of “Commitment Letter” set forth in this Agreement shall be deemed to have been modified as appropriate to reflect such replacement debt financing and any related commitment letter and (ii) any reference in this Agreement to the “Debt Financing” shall mean financing contemplated by the Commitment Letter as modified pursuant to clause (i) above.
(c) If the Debt Financing in an aggregate principal amount (together with cash, cash equivalents and short-term marketable securities on hand) at least equal to all amounts required to be paid by Parent or HoldCo in cash in connection with transactions contemplated by this Agreement, including the Preferred Stock Consideration, Company Notes and Credit Agreement (to the extent consents or waivers pursuant to each are not obtained and to the extent required), and all payments, fees and expenses payable by them arising out of the consummation of the transactions contemplated by this Agreement becomes unavailable on the terms and conditions contemplated by the Commitment Letter, and such unavailable amount is reasonably required to make such payments required to be paid in connection with the transactions contemplated by this Agreement (such event, an “Original Financing Failure”), Parent and HoldCo shall promptly notify the Company in writing of the Original Financing Failure and Parent or HoldCo shall use its commercially reasonable best efforts to secure all or such portion of the Financing arrange and obtain, as promptly as reasonably practicable, alternative financing from alternative sources on terms no and conditions not materially less favorable in the aggregate favorable, taken as a whole, to Acquiror Parent or HoldCo than the terms those contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror Letter and the related fee letters and in an amount, when added with cash, cash equivalents and marketable securities of Parent and HoldCo, at least equal to the aggregate principal amount of the Debt Financing or Acquiror Sub that it is amending such unavailable portion thereof, as the Commitment Letters.case may be (the “Alternate Financing”), and to obtain a new financing commitment letter with respect to such Alternate Financing (the “New
Appears in 1 contract
Samples: Merger Agreement (Avon Products Inc)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Buyer shall use its commercially reasonable efforts to secure take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Financing at the Closing on the terms and conditions set forth in the Financing Commitments, including using its commercially reasonable efforts to: (i) comply with and maintain the Financing Commitments in effect, (ii) negotiate and enter into definitive agreements with respect to the financing, (iii) comply with and perform the obligations applicable to it pursuant to the Financing Commitments, (iv) draw down on and consummate the financing if the conditions to the availability of the Financing have been satisfied or waived, including using its commercially reasonable best efforts to enforce its rights under any Financing Commitments and cause any Debt Financing Sources party to the Financing Commitments to fund the Financing at the Closing, and (v) satisfy on a timely basis all conditions applicable to the financing in such definitive agreements that are within its control. If any portion of the Financing expires or terminates or otherwise becomes unavailable prior to the Closing, Buyer shall use its commercially reasonable efforts to arrange for and obtain as promptly as practicable following the occurrence of any such event alternative financing (the “Alternative Financing”) in an amount sufficient to consummate the transactions contemplated hereby and perform all of its obligations hereunder on terms no (unless otherwise acceptable to Buyer) and conditions that are not materially less favorable or more onerous (including imposition of new conditions or expansion of existing conditions), in the aggregate to Acquiror aggregate, than the terms contained those set forth in the Commitment LettersFinancing Commitments, it being understood that if Buyer proceeds with any Alternative Financing, Buyer and the Company shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing.
(b) Buyer shall not replace, amend or waive the Financing Commitments executed by Buyer or any provision thereof without the Company’s prior written consent if such replacement, amendment or waiver would, or would reasonably be expected to, when taken together with any other amendments, modifications, or waivers: (i) delay or prevent the Closing, (ii) make the funding of any of the Financing (or satisfaction of the conditions to obtaining any of the Financing) less likely to occur, (iii) adversely impact the ability of Buyer to enforce its rights against the other parties to the Financing Commitments or the definitive agreements with respect to the financing, the ability of Buyer to consummate the transactions contemplated hereby to be consummated at the Closing or the likelihood of the consummation of such transactions to be consummated at the Closing, (iv) reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of any of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing), or (v) impose new conditions or adversely expand, amend or modify any of the existing conditions to the receipt of any of the Financing, or otherwise add, expand, amend or modify any other provision of the Financing Commitments, in a manner that would reasonably be expected to delay or prevent the funding of any of the Financing (or satisfaction of the conditions to any of the Financing) at the Closing. Acquiror Upon the effectiveness of any permitted amendment, supplement, modification or replacement of the Financing Commitments (including with respect to any Alternative Financing) in accordance with this Section 6.07, and references to “Financing”, “Equity Financing”, “Debt Financing” and/or “Alternative Financing” shall immediately notify Holdings if any Lenders shall notify Acquiror include the financing contemplated by the Financing Commitments as so amended, supplemented, modified or Acquiror Sub that it is amending the Commitment Lettersreplaced.
Appears in 1 contract
Financing. (af) Acquiror Notwithstanding anything contained in this Agreement to the contrary, the Purchaser expressly acknowledges and Acquiror Sub shall comply with all terms agrees that the Purchaser’s obligations under this Agreement are not conditioned in any manner whatsoever upon the Purchaser or any Designated Affiliate obtaining any financing and any failure by the Purchaser to consummate either Closing when otherwise required under this Agreement arising from the failure or inability of the Commitment Letters Purchaser to obtain financing will be deemed intentional and material for the purposes of this Agreement. Neither the Purchaser nor any of its Affiliates shall, or shall take all actions required on their part under permit, without the terms prior written consent of the Seller, any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Commitment LettersLetter, including without limitation, providing in any other manner that would reasonably be expected to (1) materially delay or prevent either Closing Date or (2) materially delay or prevent the Lenders with funding of the financing (or satisfaction of the conditions to obtaining the financing). The Purchaser will keep the Seller apprised of all information that they may request and entering into appropriate loan agreements developments or other agreements in order changes relating to obtain the Financing.
(b) financing contemplated by the Commitment Letter. In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters Letter ceases to be in full force and effect at any time or that the Lenders indicate any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations unwillingness to provide the Financing financing contemplated thereby, or for any reason the Purchaser otherwise makes no longer believes in good faith that it more difficult for Acquiror or any Designated Affiliate will be able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")financing contemplated thereby, then Acquiror shall immediately the Purchaser will promptly notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall Seller and use its commercially reasonable efforts to secure all obtain replacement financing arrangements or such portion of the Financing commitment letters on terms no less favorable to the Purchaser, taken as a whole, as soon as reasonably practicable. The term “Commitment Letter” shall include such documents as permitted by this Section 5.5 to be amended, modified or replaced, and the term “Lenders” shall be deemed to include the lenders thereunder, in each case from and after such amendment, modification or replacement. Notwithstanding anything to the aggregate contrary in this Agreement, the Purchaser shall have no obligation to Acquiror than the terms contained in enforce any rights it may have under the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror Letter by bringing an action, suit or Acquiror Sub that it is amending proceeding against the Commitment LettersLender.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement
Financing. (ai) Acquiror Subject to the terms and Acquiror Sub conditions of this Agreement (including Section 6.05(a)(v)), Purchaser shall comply with all terms of the Commitment Letters and shall take use its reasonable best efforts to take, or cause to be taken, all actions required on their part under the terms of the Commitment Lettersand to do, including without limitationor cause to be done, providing the Lenders with all information that they may request and entering into appropriate loan agreements things necessary, proper or other agreements in order advisable to obtain the Financing.
Acquisition Financing on the terms and conditions described in the Financing Commitments and, prior to the Closing, shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments or the definitive agreements with respect thereto, if such amendment, modification or waiver (bA) In reduces the event that aggregate amount of the Acquisition Financing (iincluding by changing the amount of fees to be paid or original issue discount), or (B) any Lender shall notify Acquiror imposes new or Acquiror Sub that it is withdrawing additional conditions or terminating the Commitment Letters other terms or that otherwise expands, amends or modifies any of the conditions to the receipt of the Acquisition Financing or other terms in a manner that would reasonably be expected to (x) delay, impair or prevent the Commitment Letters cannot be satisfied consummation of the transactions contemplated by this Agreement, (y) make, in any material respect, the timely funding of the Acquisition Financing or satisfaction of the conditions to obtaining the Acquisition Financing less likely to occur or (z) adversely impact, in any material respect, the ability of Purchaser to enforce its rights against other parties to the Financing Commitments or to draw upon and will not be waived consummate the Acquisition Financing. Any reference in this Agreement to (1) “Acquisition Financing” shall include the financing contemplated by the Financing Commitments as amended or modified in compliance with this Section 6.05(a)(i) and (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the “Financing Commitments”, “Equity Financing Commitment” or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the “Debt Commitment Letters, Acquiror ” shall use its commercially reasonable efforts to secure all include such documents as amended or such portion of the Financing on terms no less favorable modified in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Letterscompliance with this Section 6.05(a)(i).
Appears in 1 contract
Samples: Purchase and Sale Agreement (NPC Operating Co B, Inc.)
Financing. (a) Acquiror Buyer shall arrange and Acquiror Sub shall comply with all obtain the Debt Financing on terms and conditions not materially less favorable than those described in the Debt Commitment Letter. In furtherance of the foregoing, Buyer shall (i) maintain in effect the Debt Commitment Letters Letter; (ii) negotiate and shall take enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter (including the flex provisions) or on other terms no less favorable to Buyer; (iii) satisfy, or obtain a waiver thereof, on a timely basis all actions required on their part conditions to funding the Debt Commitment Letter and such definitive agreements with respect thereto; (iv) assuming that all conditions contained in the Debt Commitment Letter have been satisfied, consummate the Debt Financing at or prior to the Closing and (v) enforce its rights under the terms Debt Commitment Letter. Buyer shall, to the extent requested by Seller from time to time, keep Seller reasonably informed with respect to all material activity concerning the status of the Debt Financing. In addition, Buyer shall give Seller prompt notice of any material breach or material default by any party to the Debt Commitment LettersLetter, including without limitationor any definitive agreements related to the Debt Financing, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financingeach case of which Buyer becomes aware.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Debt Financing necessary for Buyer to consummate the Closing becomes unavailable for on the terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions) (other than as a result of Seller’s breach of any reason under provision of this Agreement or failure to satisfy the Commitment Lettersconditions set forth in Article VII), Acquiror (i) Buyer shall use its commercially reasonable efforts to secure all or promptly notify Seller and (ii) Buyer shall (A) arrange and obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (an “Alternative Financing”) on terms that (1) do not reduce the aggregate amount of available Debt Financing to less than the amount required to consummate the transactions contemplated by this Agreement and (2) otherwise would not reasonably be expected to materially delay or prevent the Closing and (B) provide Seller with a copy of the new financing commitment that provides for such Alternative Financing on terms no less favorable (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and including any related fee letter, which may be redacted in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersa manner consistent with Section 5.06).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Precigen, Inc.)
Financing. (a) Acquiror Buyer shall, at its or its Affiliates’ sole expense, use commercially reasonable efforts to take, or cause to be taken, all actions and Acquiror Sub shall do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Financing on the terms and conditions set forth in the Financing Agreements on or prior to the Closing Date, including (i) complying with the Financing Agreements in accordance with their respective terms and conditions until the Transactions are consummated, (ii) using commercially reasonable efforts to maintain in effect the Financing Agreements in accordance with their respective terms and conditions until the Transactions are consummated, (iii) using commercially reasonable efforts to satisfy on a timely basis all conditions applicable to the Buyer or its controlled Affiliates in the Financing Agreements that are within its control, (iv) assuming that all conditions contained in the Financing Agreements have been satisfied or waived, consummating the Financing at or prior to Closing, and (v) using commercially reasonable efforts to enforce Buyer’s and its controlled Affiliates’ rights under the Equity Commitment Letter and the Debt Financing Agreement and cause the applicable providers of financing under the Equity Commitment Letter and the Debt Financing Agreement to comply with all terms their respective obligations and fund thereunder on the Closing Date; provided that, notwithstanding anything herein to the contrary, nothing in this clause (a) will limit the ability of Buyer to pursue the Commitment Letters and shall take all actions required on their part under Financing in any manner not otherwise prohibited by this Agreement (including to pursue Alternative Financing as necessary to consummate the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the FinancingTransactions).
(b) In Buyer shall give Company prompt notice (in no event later than three (3) Business Days after obtaining knowledge (and in any event prior to the event that Anticipated Closing Date)) of (i) any Lender shall notify Acquiror actual (or Acquiror Sub threatened in writing) material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by any party to any Financing Agreement of which Buyer becomes aware, (ii) the receipt by Buyer of any written notice or other written communication from any Person with respect to any (A) actual or potential expiration or termination of, repudiation by any Person party to or default or breach under any Financing Agreement or (B) material dispute or disagreement between or among any Persons party to the Financing Agreements with respect to the obligation to fund the Financing on the Closing Date, (iii) any indication in writing that any Person party to any Financing Agreement will not provide, or it refuses to provide, all or any portion of the Financing contemplated by the Financing Agreements on the terms and subject only to the conditions expressly stated therein, (iv) the exercise of any “market flex” provisions provided for in the Debt Financing Agreement, and (v) if at any time for any reason Buyer no longer believes in good faith that it is withdrawing will be able to obtain, prior to the date the Closing, all or terminating any portion of the Commitment Letters Financing on the terms, in the manner or that from the sources contemplated by any of the Equity Commitment Letter or the Debt Financing Agreement; provided that in no event shall Buyer be under any obligation to disclose any information pursuant to this sentence to the extent it would, in the judgment of Xxxxx’s legal counsel, waive the protection of attorney-client or similar privilege if such party shall have used commercially reasonable efforts to disclose such information in a way that would not waive such privilege. Upon the reasonable written request of Company, Buyer shall promptly, and in any event within three (3) Business Days (or one (1) Business Day, if the Anticipated Closing Date is ten (10) Business Days or less on the date the request is made and in any event prior to the Anticipated Closing Date) following such written request, provide any information reasonably requested by Company relating to any circumstance referred to in clauses (i), (ii), (iii) or (iv) of the immediately preceding sentence.
(c) Buyer shall have the right from time to time to amend, restate, amend and restate, replace, supplement or otherwise modify, or waive any provision under, any Financing Agreement; provided that, without the prior written consent of the Company, Buyer shall not permit any amendment, restatement, amendment and restatement, replacement, supplement or other modification to be made to, or any waiver of any provision under, any Financing Agreement if such amendment, restatement, amendment and restatement, replacement, supplement, or other modification or waiver (A) would reduce the aggregate amount of available Financing to less than the amount required to consummate the Transactions on the Closing Date, (B) impose new or additional conditions or other contingencies relating to the receipt or funding of the Financing beyond those expressly set forth in the Financing Agreements as in effect on the date of this Agreement in a manner (x) that would reasonably be expected to impair, delay or prevent the consummation of all or any portion of the Financing on the Closing Date in an amount sufficient to consummate the Transactions on the Closing Date or (y) that is materially adverse or less favorable to Buyer or Company with respect to the certainty of timing of funding, taken as a whole, or (C) adversely impacts in any material respect the ability of Buyer to enforce its rights against the Financing Sources party to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment Agreements, or, with respect to the Equity Commitment Letters that establish additional conditions Letter, the ability of Company to exercise its rights of specific performance to the Lenders' obligations extent expressly provided thereunder. Buyer shall promptly, and in any event within three (3) Business Days (or, if earlier, prior to provide the Anticipated Closing Date) following the effectiveness thereof, deliver to Company copies of any amendment, restatement, amendment and restatement, replacement, supplement or other modification to, or waiver of any provision under, any Financing Agreement. For purposes of this Agreement (other than with respect to representations in this Agreement made by the Buyer that speaks as of the date hereof), references to the “Financing Agreements” shall include such document as permitted or required by this Section 6.12(c) to be amended, restated, amended and restated, replaced, supplemented or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed modified or waived, in writing that Acquiror can effect any each case from and after such amendment) , restatement, amendment and restatement, replacement, supplement or other modification or waiver and, for the avoidance of doubt, references to “Financing” shall include, in whole or in part (each a "Funding Termination Event"as applicable), then Acquiror shall immediately notify Holdings of such Funding Termination Event. any replacement or substitute financing provided for thereunder.
(d) In the event all or any portion of the Financing becomes unavailable for on the terms and conditions contemplated in any reason under Financing Agreement (other than as a result of the Commitment LettersCompany’s breach of any provision of this Agreement), Acquiror Buyer shall promptly notify Company and, with respect to the Equity Financing, Buyer shall and, with respect to the Debt Financing, Buyer may, but shall not be obligated to, (i) arrange and obtain any such portion from alternative sources, on terms, taken as whole, that are no more adverse to the Buyer or that are otherwise acceptable to Buyer (“Alternative Financing”), as promptly as practicable following the occurrence of such event and (ii) provide Company with a copy of all amendments, supplements, other modifications or agreements pursuant to which any Alternative Financing shall be made available to Buyer (the “Alternative Financing Agreements”); provided that the terms of such Alternative Financing shall not (A) reduce the aggregate amount of available Financing to less than the amount required to consummate the Transactions on the Closing Date or (B) impose new or additional conditions or other contingencies relating to the receipt or funding of the Financing beyond those expressly set forth in the Financing Agreements as in effect on the date of this Agreement (or as otherwise consented to by Company pursuant to Section 6.12(c)). Notwithstanding anything to the contrary contained in this Agreement in no event shall any Buyer be required to pay any fees or any interest rates applicable to any Alternative Financing in excess of those contemplated by the Financing Agreements as in effect on the date hereof, or agree to any term less favorable to Buyer than such term contained in the Financing Agreements as in effect on the date hereof.
(e) For purposes of and subject to the terms of this Section 6.12, (i) the term “Financing” shall also be deemed to include any Alternative Financing and (ii) the term “Financing Agreement” shall also be deemed to include any commitment letter (or similar agreement), fee letter, or definitive agreement, as applicable, with respect to such Alternative Financing as well as any commitment letter (or similar agreement), fee letter, or definitive agreement, as applicable, as amended, supplemented or modified in accordance with this Section 6.12.
(f) Company shall use its commercially reasonable efforts to, and shall cause its Consolidated Subsidiaries to, use their respective commercially reasonable efforts to, cooperate in connection with the Debt Financing (including any Alternative Financing constituting Debt Financing) as may be reasonably requested by Buyer and required in connection with the Debt Financing, including using commercially reasonable efforts to secure all (i) at reasonable times, upon reasonable advanced notice, and at reasonable locations, participate in a reasonable number of meetings, due diligence sessions, including direct contact between appropriate members of senior management of Company, on the one hand, and the actual and potential Debt Financing Sources, on the other hand, in each case, to the extent usual and customary for financings of a type similar to the Debt Financing and reasonably required in connection with the Debt Financing, (ii) take corporate (or such portion comparable) actions reasonably requested by Buyer to permit the consummation of the Debt Financing on terms no less favorable and to permit the proceeds thereof to be made available to the Surviving Company at the Closing, (iii) furnish, at least three (3) Business Days prior to the Closing Date, such documentation and information as is reasonably requested in writing by Buyer at least ten (10) days prior to the Closing to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including a certification in relation to Company and its Consolidated Subsidiaries regarding individual beneficial ownership, (iv) facilitate the obtaining of guarantees and pledging of collateral and other matters ancillary to the Debt Financing, as may be requested by Xxxxx and required in connection with the Debt Financing, including obtaining and perfection of security interests in collateral and delivery to the Debt Financing Sources at the Closing of all certificates, if any, representing outstanding equity interests of Company and each of its Consolidated Subsidiaries, (v) assist the Buyer in completing any borrowing base certificate required in connection with the Financing and (vi) as promptly as practicable after the date hereof, furnish Buyer and the Debt Financing Sources with any pertinent and customary information regarding Company and its Consolidated Subsidiaries as may be reasonably requested by Buyer and required in connection with the Debt Financing. Buyer will not, without written consent of Company in each instance, use in advertising or publicity in connection with the Financing or otherwise the name of Company, Xxxxxxx Xxxxx Asset Management, L.P., Xxxxxxx Xxxxx & Co. LLC, or any of their affiliates (collectively, “Xxxxxxx Xxxxx”) nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof (collectively, the “Mark”) of Xxxxxxx Xxxxx. Xxxxx acknowledges that Xxxxxxx Xxxxx owns all right, title and interest in and to the Mark and the registration thereof.
(g) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall require Company or any of its Consolidated Subsidiaries to (I) cooperate to the extent such cooperation would interfere unreasonably (as reasonably determined by Company) with the business or operations of Company and any of its Consolidated Subsidiaries, (II) encumber any of the assets of Company and any of its Consolidated Subsidiaries or otherwise be an issuer, guarantor or other obligor with respect to the Debt Financing prior to the Closing Date, (III) pay, or commit to pay, any commitment or other fee or make any other payment, in each case, in connection with the Debt Financing prior to the Closing Date, (IV) take, or commit to take, any action that would reasonably be expected to conflict with, violate or result in a breach of or default under any material contract in effect as of the date hereof (including this Agreement), any Organizational Document of Company and any of its Consolidated Subsidiaries or any Law, (V) take, or commit to take, any action to authorize or approve, or execute or deliver, any agreement, certificate or other document related to the Debt Financing unless (x) such Person will continue to serve as a director or manager or officer, as the case may be, after the Closing Date and (y) the effectiveness of such authorization or approval or agreement, certificate or other document is contingent upon the occurrence of, the Closing, (VI) incur, or commit to incur, or be required to reimburse, or commit to reimburse, any cost, expense, liability or obligation or provide or agree to provide any indemnity, in each case, in connection with the Debt Financing (x) prior to the Closing Date or (y) unless concurrently reimbursed by the Buyer or any of its Affiliates, (VII) take any action that could reasonably be expected to subject any director, officer, employee, agent, manager, consultant, advisor or other representative of Company or any Affiliate to any actual or potential personal liability, (VIII) provide access to or disclose information that Company determines in good faith would jeopardize any attorney client privilege of, or conflict with any material confidentiality obligations binding on, Company or any Affiliate of Company if such Person shall have used commercially reasonable efforts to provide access to or disclose such information in a way that would not waive such privilege or conflict with such obligations or (X) deliver any financial or other information that is not currently readily available or prepared in the aggregate ordinary course of business of Company. All non-public or other confidential information provided by Company or any of its Representatives pursuant to Acquiror than this Section 6.12 shall be kept confidential in accordance with the terms contained Confidentiality Agreement, except that such information may be disclosed to potential Financing Sources, subject to such potential Financing Sources entering into customary confidentiality undertakings with respect to such information.
(h) Notwithstanding anything in this Agreement to the Commitment Letterscontrary, none of Company, its Consolidated Subsidiaries or any of their respective directors, officers or employees shall incur any Liability to any Person under the Debt Financing with respect to periods prior to the Effective Time. Acquiror In furtherance of the foregoing, Buyer shall immediately notify Holdings if fully indemnify Company, its Consolidated Subsidiaries and their respective directors, officers and employees for any Lenders shall notify Acquiror and all reasonable and documented out-of-pocket fees and expenses incurred by such Persons for any claims asserted or Acquiror Sub that it is amending alleged as a result of the Commitment Letterscooperation provided by Company and its Consolidated Subsidiaries in accordance with Section 6.12(f).
Appears in 1 contract
Samples: Merger Agreement (Goldman Sachs Private Middle Market Credit LLC)
Financing. (a) Acquiror Buyer shall use commercially reasonable efforts to (i) maintain in effect the Commitment Letters and Acquiror Sub to satisfy on a timely basis all the conditions to obtaining the financing for the transactions contemplated in this Agreement (the “Financing”) set forth therein, (ii) enter into definitive financing agreements with respect to the Financing as contemplated by the Commitment Letters (including by consummating the equity financing pursuant to the terms and conditions of the Equity Commitment Letter), (iii) enter into definitive financing agreements Table of Contents with respect to the Financing as contemplated by the Debt Commitment Letter and (iv) consummate the Financing at the Closing. Buyer shall comply not permit any amendment, modification or waiver to be made to the Commitment Letters without first consulting with all terms the Company, and will obtain the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) prior to agreeing to any such amendment, modification or waiver. To the extent actually known by Buyer, Buyer will keep the Company (x) fully informed of any material breaches by any party of the Commitment Letters or any termination of the Commitment Letters and shall take all actions required on their part under (y) upon the terms request of the Commitment LettersCompany at any time, including without limitation, providing reasonably informed of the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain status of the Financingfinancing process.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating If the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")are terminated, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Buyer shall use its commercially reasonable efforts to secure all enter into commitments for alternative financing with other persons (it being understood that Buyer shall provide prompt notice to the Company upon obtaining any such alternative financing commitments); provided, that Buyer shall be under no obligation to obtain or such portion of the Financing on seek to obtain any financing commitment containing terms no or funding conditions less favorable in the aggregate to Acquiror Buyer than the terms contained those included in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Letters.
Appears in 1 contract
Samples: Master Asset Purchase Agreement (Franklin Covey Co)
Financing. (a) Acquiror Notwithstanding anything contained in this Agreement to the contrary, the Buyer expressly acknowledges and Acquiror Sub agrees that the Buyer’s obligations hereunder are not conditioned in any manner whatsoever upon the Buyer obtaining any financing. Upon request, the Buyer shall comply inform the Sellers of all material developments or changes relating to the Financing Commitment and the Financing contemplated thereby. The Buyer shall use commercially reasonable efforts to perform all obligations required to be performed by it in accordance with all terms of the Commitment Letters and shall take all actions required on their part under pursuant to the terms of the Commitment LettersFinancing Commitments and to maintain such Financing Commitments in full force and effect in accordance with their terms, including without limitation, providing at all times prior to the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) Closing. In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing Commitment shall cease to be in full force and effect at any time or the Commitment Letters cannot be satisfied and will not be waived lenders or (ii) Acquiror has agreed to equity providers party thereto shall indicate any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations unwillingness to provide the Financing contemplated thereby, or for any reason the Buyer otherwise makes no longer believes in good faith that it more difficult for Acquiror will be able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")contemplated thereby, then Acquiror the Buyer shall immediately promptly notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall Sellers and use its commercially reasonable efforts to secure all obtain replacement financing arrangements or such portion of the Financing commitment letters as soon as reasonably practicable on terms no less favorable in the aggregate to Acquiror the Buyer than the terms contained those set forth in the Commitment Letters. Acquiror Financing Commitments (including any market flex provisions therein).
(b) The Sellers agree to provide, and shall immediately notify Holdings if cause their Representatives to provide, reasonable cooperation (including with respect to timeliness) in connection with the arrangement of the Debt Financing as may be reasonably requested by the Buyer, including (i) participation in meetings, presentations, drafting sessions, due diligence sessions, “road shows” and sessions with rating agencies, (ii) furnishing the Buyer and its financing sources as promptly as practicable, in the ordinary course, with financial and other pertinent information regarding the Acquired Companies and the Acquired Business as may be reasonably requested by the Buyer, including all financial statements, financial data and other information (including with respect to the fiscal year ended December 31, 2006) (A) of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act to consummate the offering of debt securities contemplated by the Financing Commitments at the time during ARC’s fiscal year such offerings will be made and (B) all financial statements and other information relating to the Acquired Companies and the Acquired Business necessary for the satisfaction of the conditions set forth in the Financing Commitments (collectively, the “Required Information”), (iii) reasonably assisting the Buyer and its financing sources in the preparation of (A) one or more offering documents and or confidential information memoranda for any Lenders portion of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of the Buyer and its financing sources for any portion of the Debt Financing, including providing assistance in preparation for, and participating in, meetings, drafting sessions and due diligence sessions, (v) providing and executing documents as may be reasonably requested by the Buyer, including customary certificates (including a certificate of the chief financial officer of ARC with respect to solvency matters), consents of accountants for use of their reports in any materials relating to the Debt Financing and customary representation letters in connection with bank confidential information memoranda, (vi) reasonably facilitating the pledging of collateral and providing of guarantees, subject to the occurrence of the Closing, (vii) without limitation to any other obligation hereunder, using commercially reasonable efforts to obtain legal opinions, surveys and title insurance (provided that the Sellers shall notify Acquiror not be obligated to pay for any title costs incurred for the purpose of providing mortgage title policies to the lender under the Debt Financing) or Acquiror Sub documents as reasonably requested by the Buyer, including commitment letters, underwriting or placement agreements, loan agreements, note purchase agreements, registration rights agreements, indentures and related documents and (viii) using its commercially reasonable efforts to cause its independent accountants to provide assistance to the Buyer, including providing consent to the Buyer to prepare and use their audit reports relating to ARC and to provide any necessary “comfort letters”; provided that it the Sellers shall not be required to pay any financing commitment or other similar fee that is amending not reimbursed by the Commitment LettersBuyer in connection with the Debt Financing prior to the Effective Time and further provided that the Buyer shall pay the Sellers’ reasonable out-of-pocket expenses in connection with any cooperation in connection with this Section 5.11.
Appears in 1 contract
Samples: Transaction Agreement (Affordable Residential Communities Inc)
Financing. a. The Purchaser shall use, and shall cause its Affiliates to use, its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done all things necessary, proper or advisable to arrange and consummate the Debt Financing (aor any Alternative Financing) Acquiror on the terms and Acquiror Sub shall comply conditions described in the Debt Financing Agreements and to cause the conditions precedent described in the Debt Commitment Letter to be satisfied in a timely basis, including using its commercially reasonable efforts to (i) maintain in effect the Debt Financing Agreements (including by complying with all terms so-called “flex” provisions) until the funding of the Commitment Letters Debt Financing at or prior to Closing, (ii) satisfy on a timely basis (or obtain a waiver of) all conditions and shall take all actions required covenants applicable to the Purchaser to obtaining the Debt Financing at Closing as set forth therein, (iii) negotiate, execute and deliver definitive agreements with respect to such Debt Financing on their part under the terms and conditions (including the “flex” provisions) contemplated by the Debt Financing Agreements (and provide copies thereof to the Seller), (iv) fully pay any and all commitment fees or other fees required by the Debt Financing Agreements and (v) upon satisfaction of the conditions set forth in the Debt Commitment LettersLetter, including without limitation, providing consummate the Lenders with all information that they may request and entering into appropriate loan agreements Debt Financing at or other agreements in order prior to obtain the Financing.
(b) Closing. In the event that (i) the Purchaser becomes aware of any Lender shall notify Acquiror event or Acquiror Sub circumstance that it is withdrawing or terminating the Commitment Letters or that any makes procurement of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Debt Financing becomes unavailable unlikely to occur in the manner or from the sources contemplated in, or pursuant to the terms and conditions of, the Debt Commitment Letter and such Debt Financing or portion thereof is reasonably required for any reason under the Commitment LettersPurchaser to consummate the transactions contemplated by this Agreement, Acquiror the Purchaser shall reasonably promptly notify the Seller, and the Purchaser shall use its commercially reasonable efforts to secure all obtain, as promptly as practicable following the occurrence of such event or such portion circumstance, replacement financings in the form of commitments (other than amounts that are replaced by other funds available to the Financing Purchaser) from alternate sources (the “Alternative Financing”) on terms no and conditions that will enable the Purchaser to consummate the transactions contemplated by this Agreement and that are not materially less favorable in the aggregate to Acquiror the Purchaser than the terms those contained in the Debt Commitment LettersLetter; provided, however, that such Alternative Financing shall not (i) be subject to any additional or modified conditions or other contingencies to the funding of the Debt Financing than those contained in the Debt Commitment Letter or (ii) otherwise be reasonably likely to impair or materially delay the Closing or the date on which the Debt Financing would be obtained. Acquiror The Purchaser shall immediately notify Holdings deliver to the Seller complete and correct copies of all material amendments, supplements, other modifications to the Debt Commitment Letter and all agreements pursuant to which any Alternative Financing shall be made available to the Purchaser. For purposes of this Agreement, the term “Debt Financing” shall also be deemed to include any alternate Alternative Financing obtained by the Purchaser and the term “Debt Commitment Letter” shall also be deemed to include any commitment letter (or similar agreement) with respect to such Alternative Financing.
b. Prior to the Closing, the Seller shall use commercially reasonable efforts to provide, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall instruct its accountants, consultants, investment bankers, legal counsel, agents and other advisors and representatives to use their respective commercially reasonable efforts to provide, in connection with the arrangement of the Debt Financing, all reasonable cooperation (including with respect to timeliness) requested by the Purchaser that is customary in connection with the arrangement of debt financing for transactions that are substantially similar to the transactions contemplated by this Agreement, including using commercially reasonable efforts to (i) provide financial and other pertinent information, including any Required Information regarding the Seller and its Subsidiaries and the Business as may be reasonably requested in writing by the Purchaser in order to consummate the Debt Financing or as necessary to satisfy the conditions set forth in the Debt Commitment Letter, (ii) participate in a reasonable number of meetings, due diligence and drafting sessions, presentations (including, without limitation, marketing (or similar) presentations, and lender or other investor presentations) and sessions with rating agencies, (iii) assisting in preparing customary documents and materials, including confidential information memoranda, lender and investor presentations, rating agency presentations and similar documents and materials in connection with the Debt Financing (including the execution and delivery by officers of the Seller of customary authorization letters), (iv) reasonably cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document relating to the Debt Financing (to the extent that such conditions precedent in such definitive documents are materially consistent with the conditions precedent set forth in the Debt Commitment Letter and the satisfaction of such condition requires the cooperation of, and is within the control of, the Seller and/or any of its Subsidiaries) and (v) furnishing the Purchaser and the Financing Sources promptly with all documentation and other information which any Financing Source providing or arranging Debt Financing has determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, it being understood and agreed that information and documents provided by the Seller may be delivered to agents and lenders and other Financing Sources under the Debt Commitment Letter and their representatives (subject to customary arrangements for confidentiality, including the Purchaser providing prior written notice of disclosure to the Seller); provided, however, that neither the Seller nor any of its Subsidiaries shall be required to pay any commitment or other fee or incur any other liability or obligation in connection with the Debt Financing or to take any action that would be prohibited by any applicable Law or cause a default of, or breach under, or otherwise violate any Contract. The Purchaser shall promptly, upon request by the Seller, reimburse the Seller for all out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Seller in connection with the cooperation of the Seller contemplated by this Section 5.13(b) and shall indemnify and hold harmless the Seller and its directors, officers, employees, representatives and Affiliates (collectively, the “Cooperation Indemnitees”) from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith, except to the extent suffered or incurred as a result of the willful misconduct or bad faith of the Cooperation Indemnitees.
c. Prior to the Closing without the prior written consent of the Seller, the Purchaser shall not permit any material amendment or modification to be made to, or any waiver of any provision or remedy of, any Debt Financing Agreement, if such amendments, modifications or waiver would impose new or additional conditions or otherwise expand, amend, modify or waive any Lenders of the conditions to receipt of the Debt Financing, if such amendment, modification or waiver would reasonably be expected to cause a material delay to receipt of the Debt Financing under any Debt Financing Agreement or if such amendment, modification or waiver would reduce the amount of the Debt Financing below an amount which, when combined with the cash or cash equivalents otherwise available to the Purchaser, would not provide the Purchaser with sufficient funds to consummate the transactions contemplated by this Agreement; provided that for the avoidance of doubt, the Purchaser may replace, modify, supplement or amend the Debt Commitment Letter to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letters as of the date hereof, and make other amendments, modifications or waivers, as long as such replacement, modification, supplement or amendment does not result in the imposition of new or additional conditions or otherwise expand, amend, modify or waive any of the conditions to the receipt of the Debt Financing in a manner which would reasonably be expected to cause a material delay to the receipt of the Debt Financing or, if applicable, the Alternative Financing.
d. Notwithstanding any other provision of this Agreement, for all purposes of this Agreement, unless the Seller shall notify Acquiror have engaged in willful misconduct or Acquiror Sub bad faith in connection with its obligations under this Section 5.13, the Seller shall not be deemed to be in breach of any of its obligations under, and it shall be deemed to have complied with all of its obligations contained in this Section 5.13.
e. The Purchaser acknowledges and agrees that it is amending shall not be a condition to Closing for the Commitment LettersPurchaser to obtain the Debt Financing or the Alternative Financing.
Appears in 1 contract
Samples: Sale, Purchase and Contribution Agreement (W R Grace & Co)
Financing. (a) Acquiror Each of Parent and Acquiror Sub Merger Subsidiary shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Financing in an amount required to satisfy the Required Amount not later than the Closing Date on the terms and conditions described in or contemplated by the Financing Letters (including complying with any valid request requiring the exercise of “market flex” provisions in the fee letter associated with the Debt Commitment Letters) (or on other terms with respect to conditionality that are not less favorable to Parent than the conditions set forth in the Financing Letters and otherwise on terms and conditions as would not have any result, event or consequence described in any of clauses (A) through (D) of Section 8.08(c)), including using reasonable best efforts to (i) maintain in full force and effect the Financing Letters, (ii) negotiate and execute definitive agreements with respect to the Debt Financing required to pay the Required Amount (after taking into account any available Equity Financing) (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt Financing required to pay the Required Amount (after taking into account any available Equity Financing)) on the terms and conditions contained in the Debt Commitment Letters (which may reflect “market flex” provisions) (or on other terms with respect to conditionality that are not less favorable to Parent than the conditions set forth in the Financing Letters and otherwise on terms and conditions as would not have any result, event or consequence described in any of clauses (A) through (D) of Section 8.08(c)) (such definitive agreements, the “Definitive Financing Agreements”), (iii) satisfy and comply with on a timely basis (except to the extent that Parent and Merger Subsidiary have obtained the waiver of) all terms conditions and covenants to the funding or investing of the Commitment Financing required to pay the Required Amount applicable to Parent or Merger Subsidiary in the Financing Letters and shall take all actions the Definitive Financing Agreements that are within their control that are to be satisfied by Parent or Merger Subsidiary, (iv) consummate the Financing in an amount required on their part to pay the Required Amount at or prior to the Closing and (v) enforce its rights under the terms Debt Commitment Letters. Neither Parent nor Merger Subsidiary shall release or consent to the termination of the Commitment Letters, including without limitation, providing obligations of the Lenders with all information that they may request and entering Debt Financing Sources to provide the Debt Financing in an amount required to pay the Required Amount (after taking into appropriate loan agreements or other agreements in order to obtain the account any available Equity Financing).
(b) In the event that, notwithstanding the use of reasonable best efforts by Parent to satisfy its obligations under Section 8.08(c), any portion of the Debt Financing in an amount required to pay the Required Amount (after taking into account any available Equity Financing) becomes unavailable on the terms and conditions (including any “market flex” provisions) contemplated in the Debt Commitment Letters, Parent shall use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, notify the Company of such unavailability and Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain alternative financing on terms and conditions not less favorable to Parent than the terms and conditions (including any “market flex” provisions) contained in the Debt Commitment Letters in an amount sufficient, when added to the portion of the Financing that is and remains available and taking into account any available Equity Financing, to pay the Required Amount (“Alternative Financing”) and to obtain and promptly provide the Company with a copy of the new executed commitment letter that provides for such Alternative Financing (and any related executed fee letters, fee credit letter and engagement letters, as applicable, in connection therewith, copies of which shall be provided to the Company (it being understood that any such fee letter, fee credit letter and engagement letter may be redacted as to fee amounts, “flex” terms and other commercially sensitive economic terms customarily redacted, so long as such redactions do not relate to any terms that may adversely affect the conditionality, enforceability, availability or termination of the Alternative Financing Commitment Letter or reduce the aggregate principal amount of the Debt Financing below the amount required to pay the Required Amount)) (the “Alternative Financing Commitment Letter”). In furtherance of, and not in limitation of, the foregoing, in the event that any portion of the Debt Financing in an amount required to pay the Required Amount (after taking into account any available Equity Financing) becomes unavailable, regardless of the reason therefor, but any bridge facilities contemplated by the Debt Financing (or alternative bridge facilities obtained in accordance with this Section 8.08(b)) are available on the terms and conditions described in the Debt Commitment Letters, then Parent shall use reasonable best efforts to cause the proceeds of such bridge financing to be used in lieu of such contemplated Debt Financing as promptly as practicable following the occurrence of such event. For purposes of this Agreement (other than with respect to representations in this Agreement made by Parent or Merger Subsidiary that speak to the date of this Agreement) references to (i) any Lender the “Financing” and “Debt Financing” shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating include the debt financing contemplated by the Debt Commitment Letters and any such Alternative Financing, (ii) the “Financing Letters” and the “Debt Commitment Letters” shall include the Debt Commitment Letters to the extent not superseded by the Alternative Financing Commitment Letter and any such Alternative Financing Commitment Letter, (iii) the “Definitive Financing Agreements” shall include the definitive documentation relating to the debt financing completed by the Debt Commitment Letters and any such Alternative Financing and (iv) the “Debt Financing Sources” shall include the financial institutions and other entities party to any Alternative Financing Commitment Letter.
(c) Neither Parent nor Merger Subsidiary shall permit or that consent to or agree to any amendment, restatement, replacement, supplement, termination or other modification or waiver of any provision or remedy under, (i) the Equity Commitment Letter (other than to increase the amount of Equity Financing available thereunder) without the prior written consent of the Company or (ii) the Debt Commitment Letters, without the prior written consent of the Company, if such amendment, restatement, supplement, termination, modification or waiver would (A) impose new or additional conditions precedent to the funding of the Debt Financing or would otherwise adversely change, amend, modify or expand any of the conditions precedent to the funding of the Debt Financing, (B) be reasonably expected to prevent or delay the availability of all or a portion of the Debt Financing in necessary to pay the Required Amount (after taking into account any available Equity Financing) or the consummation of the transactions contemplated by this Agreement, (C) reduce the aggregate amount of the Debt Financing below the amount necessary to pay the Required Amount (after taking into account any available Equity Financing) or (D) otherwise adversely affect the ability of the Parent or Merger Subsidiary to enforce their rights under the Debt Commitment Letters; provided that Parent may amend the Debt Commitment Letters canto add lenders, lead arrangers, bookrunners, syndication agents or other entities who had not executed the Debt Commitment Letters as of the date of this Agreement. For purposes of this Agreement (other than with respect to representations in this Agreement made by Parent or Merger Subsidiary that speak as of the date of this Agreement), references to (i) the “Equity Financing”, “Debt Financing” and “Financing” will include the financing contemplated by the Financing Letters as permitted by this Section 8.08 to be satisfied amended, restated, replaced, supplemented or otherwise modified or waived and (ii) the “Debt Commitment Letters”, “Equity Commitment Letter” or “Financing Letters” shall include such document as permitted by this Section 8.08(c) to be amended, restated, replaced, supplemented or otherwise modified or waived, in each case from and after such amendment, restatement, replacement, supplement or other modification or waiver. Notwithstanding anything to the contrary in this Agreement, in no event shall any Alternative Financing Commitment Letter, or any amendment, restatement, amendment and restatement, modification or supplement to, or replacement of, the Debt Commitment Letters, be deemed to adversely expand the obligations of the Company and its Subsidiaries to assist with respect to the Debt Financing under the Company Cooperation Covenant.
(d) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 8.07 will not require, and in no event will the reasonable best efforts of Parent or Merger Subsidiary be waived deemed or construed to require, either Parent or Merger Subsidiary to (i) seek the Equity Financing from any source other than a counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter or (ii) Acquiror has agreed pay any fees in excess of those contemplated by the Equity Commitment Letter or the Debt Commitment Letters.
(e) Parent shall give the Company prompt written notice after Parent’s knowledge (i) of any default or breach (or any event that, with or without notice, lapse of time or both, would, or would reasonably be expected to, give rise to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide default or breach) by any party under any of the Financing Letters or otherwise makes it more difficult for Acquiror the Definitive Financing Agreements of which Parent or Merger Subsidiary becomes aware, (ii) of any termination of any of the Financing Letters, (iii) of the receipt by Parent or Merger Subsidiary of any written notice or other written communication from any Debt Financing Source with respect to any (A) actual or potential default, breach, termination or repudiation of any Financing Letter or any Definitive Financing Agreement, or any material provision thereof, in each case by any party thereto, or (B) material dispute or disagreement between or among any parties to any Financing Letter or the Definitive Financing Agreements that would reasonably be expected to prevent or materially delay the Closing or make the funding of the Financing required to pay the Required Amount on the Closing Date less likely to occur and (iv) of the occurrence of an event or development that would reasonably be expected to adversely impact the ability of Parent or Merger Subsidiary to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for necessary to pay the Required Amount (after taking into account any reason under available Equity Financing). Without limitation of the Commitment Lettersforegoing, Acquiror shall use upon the request of the Company from time to time, Parent will update the Company on the material activity and developments of its commercially reasonable efforts to secure arrange and obtain the Debt Financing, including by providing copies of all definitive agreements (and drafts of all offering documents and marketing materials) related to the Debt Financing, and any amendments, modifications or such portion of the replacements to any Debt Commitment Letter (or Alternative Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersLetter).
Appears in 1 contract
Financing. (a) Acquiror GETCO shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with to do, or cause to be done, all terms things necessary to arrange and obtain the proceeds of the Financing (including, if necessary to consummate the transactions contemplated hereby, the “bridge” loans contemplated in the Debt Commitment Letters and shall take all actions required Letter) on their part under the terms and conditions set forth in the Financing Letters (or on terms more favorable in the aggregate to GETCO), including the execution and delivery of all such instruments and documents as may be reasonably required thereunder. Without limiting the generality of the Commitment foregoing, GETCO shall: (i) use its reasonable best efforts to maintain in full force and effect the Financing Letters in accordance with the terms and subject to the conditions set forth therein; (ii) as promptly as practicable after the date of the Original Merger Agreement, use its reasonable best efforts to negotiate, execute and deliver the definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”) on the terms and conditions (including the “market flex” terms and conditions) contained in the Debt Financing Letters or on other terms more favorable in the aggregate to GETCO; provided, however, that in no event shall any of the Definitive Financing Agreements: (A) reduce the aggregate amount of the Debt Financing provided for in the Debt Financing Letters to an amount that is less than the aggregate amount of Debt Financing sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27; (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Financing Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements amend or modify any of such conditions or other agreements contingencies in order a manner adverse to GETCO (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; or (C) contain terms (other than those terms expressly set forth in the Debt Financing Letters) that would reasonably be expected to (1) prevent or delay the Effective Time or the date on which the Debt Financing would be obtained or (2) make the funding of Debt Financing less likely, in any material respect, to occur; (iii) pay in a timely manner any commitment or other fees that are or become due and payable under or with respect to the Debt Financing Letters on or following the date of the Original Merger Agreement; (iv) use its reasonable best efforts to obtain all rating agency approvals necessary to obtain the Debt Financing and to satisfy all other conditions to obtaining the Debt Financing; and (v) enforce its rights under the Financing Letters and the Definitive Financing Agreements.
(b) In Without limiting any of its obligations hereunder, GETCO shall keep Knight informed on a reasonably current basis and in reasonable detail with respect to the event that status of the Debt Financing. GETCO shall deliver to Knight accurate and complete copies of the executed Definitive Financing Agreements promptly after their execution. Without limiting the generality of the foregoing, GETCO shall give Knight notice as promptly as reasonably practicable of (i) any Lender shall notify Acquiror material breach or Acquiror Sub that it is withdrawing default on the part of any party to any Financing Letter or terminating the Commitment Letters or that any of the conditions to the Definitive Financing in the Commitment Letters cannot be satisfied and will not be waived or Agreement, (ii) Acquiror has agreed any notice from a party to any amendment Financing Letter or Definitive Financing Agreement of such party’s intent to not comply with any of its commitments or other material obligations under any Financing Letter or Definitive Financing Agreement, (iii) any actual or purported withdrawal, modification, termination, rescission or repudiation of any Financing Letter or Definitive Financing Agreement, or any provision thereof, and (iv) any other circumstance resulting in GETCO no longer believing in good faith that it will be able to obtain, prior to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")Closing Date, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing on the terms, in the manner or from the sources contemplated by any Financing Letter or Definitive Financing Agreement.
(c) GETCO shall not permit any amendment, supplement or modification to be made to, or agree to permit any waiver of any provision or remedy under, any Financing Letter or Definitive Financing Agreement without Knight’s prior consent, except that GETCO may amend, supplement or otherwise modify any Financing Letter or Definitive Financing Agreement (including by joining one or more additional lenders or agents as parties thereto) if such amendment, supplement or modification: (i) does not reduce the aggregate amount of the Financing to an amount that is less than the aggregate amount of Financing sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27 (it being understood that, subject to the requirements of this Section 7.16(c), such amendment, supplement or other modification to any Debt Financing Letter or Definitive Financing Agreement may provide for the assignment of any portion of the commitments under the Debt Financing Letters to additional agents or arrangers and grant such persons approval rights with respect to certain matters as are customarily granted to additional agents or arrangers); (ii) does not expand the conditions or other contingencies to the receipt or funding of the Financing, does not amend or modify, in a manner adverse to GETCO any of the conditions or other contingencies to the receipt or funding of the Financing and does not impose new or additional conditions or other contingencies to the receipt or funding of the Financing; (iii) does not impair the ability of GETCO to enforce its rights against other parties to the Financing Letters and (iv) would not reasonably be expected to (A) prevent or delay the Effective Time or the date on which the Financing would be obtained or (B) make the funding of the Financing less likely, in any material respect, to occur. GETCO shall not agree to the withdrawal, repudiation, termination or rescission of any Financing Letter or Definitive Financing Agreement or any provision thereof. GETCO shall promptly deliver to Knight true and complete copies of any such amendment, modification or waiver.
(d) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in any Debt Financing Letter or Definitive Financing Agreement for any reason under the Commitment Lettersreason, Acquiror or any Debt Financing Letter or Definitive Financing Agreement shall be withdrawn, repudiated, terminated or rescinded for any reason, then GETCO shall use its commercially reasonable best efforts to secure arrange and obtain, as promptly as practicable, from the same and/or alternative financing sources, alternative financing in an amount sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27; provided that in no event shall GETCO be obligated to obtain alternative financing on terms and conditions that in the aggregate are materially less favorable to GETCO than the terms and conditions provided for in the Debt Commitment Letter as of the date of the Original Merger Agreement (as determined in the good faith judgment of GETCO). In the event any alternative financing is obtained in accordance with this Section 7.16(d) (“Alternative Financing”), references in this Agreement to the Debt Financing shall be deemed to refer to such Alternative Financing (in lieu of the Debt Financing replaced thereby), and if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the Debt Financing Letters and the Definitive Financing Agreements shall be deemed to refer to such commitment letters and definitive financing agreements relating to such Alternative Financing (in lieu of the Debt Financing Letters and the Definitive Financing Agreements replaced thereby), and all obligations of GETCO pursuant to this Section 7.16 shall be applicable thereto to the same extent as GETCO’s obligations with respect to the Financing replaced thereby. GETCO shall promptly deliver to Knight true and complete copies of any commitments with respect to Alternative Financing.
(e) Prior to the Closing, Knight shall use reasonable best efforts, shall cause its subsidiaries to use reasonable best efforts, and shall use its reasonable best efforts to cause its respective Representatives, to provide to GETCO all reasonable cooperation requested by GETCO that is necessary in connection with the Debt Financing, including (i) furnishing GETCO and its Financing Sources the Required Information, (ii) participating in a reasonable number of meetings (including customary one-on-one meetings among the parties acting as lead arrangers or such portion agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of Knight), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing, (iii) assisting with the preparation of materials for rating agency presentations, bank information memoranda, offering documents, private placement memoranda and similar documents required in connection with the Debt Financing (including requesting any consents of accountants for use of their reports in any materials relating to the Debt Financing and the delivery of one or more customary representation letters), (iv) obtaining accountants’ comfort letters and legal opinions as reasonably requested by GETCO, (v) facilitating the pledging of collateral in connection with the Debt Financing, (vi) executing and delivering any documents as may be reasonably requested by GETCO, (vii) causing the taking of corporate actions (subject to the occurrence of the Closing) by Knight and its subsidiaries reasonably necessary to permit the completion of the Financing and (viii) facilitating the execution and delivery at the Closing of definitive documents related to the Debt Financing on terms no less favorable in the aggregate to Acquiror than the terms contained contemplated by the Debt Financing; provided, that such requested cooperation does not materially and adversely interfere with the ongoing operations of Knight and its subsidiaries; provided, further, that neither Knight nor any of its subsidiaries shall be required to commit to take any action that, nor execute any document or enter into any agreement the effectiveness of which, is not contingent upon the Closing. None of Knight or any of its subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) or incur any other liability or provide or agree to provide any indemnity in connection with the Commitment LettersFinancing or any of the foregoing, prior to the Effective Time. Acquiror GETCO shall immediately notify Holdings if indemnify and hold harmless Knight, its subsidiaries and the Representatives from and against any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Letters.and all liabilities, losses, damages, claims,
Appears in 1 contract
Samples: Agreement and Plan of Merger (Knight Capital Group, Inc.)
Financing. (a) Acquiror Purchaser shall, at Purchaser’s expense, (i) use all reasonable efforts to fully satisfy, on a timely basis, each of the conditions precedent set forth in the Commitment Letters and Acquiror Sub (ii) fully enforce its rights under each Commitment Letter. Purchaser shall comply not, without the prior written consent of Seller (not to be unreasonably withheld, conditioned or delayed), waive any of its rights under or amend, or agree to waive any of its rights under or amend, either Commitment Letter if such waiver or amendment is reasonably likely to materially impair, materially delay or prevent the transactions contemplated by this Agreement.
(b) Purchaser shall keep Seller informed on a current basis with respect to all terms material activity concerning the status of the investment and financings contemplated by the Commitment Letters and shall take all actions required on their part under give Seller prompt notice after becoming aware of any material adverse change with respect to such investment or financings. Without limiting the terms of foregoing, Purchaser shall notify Seller promptly, and in any event within two Business Days, if at any time prior to the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that Closing Date (i) any Commitment Letter shall expire or be terminated for any reason, (ii) any Lender shall notify Acquiror or Acquiror Sub an Equity Participant notifies Purchaser that it no longer intends to provide financing to Purchaser on terms set forth therein, or (iii) Purchaser otherwise determines that any condition precedent set forth in either Commitment Letter is withdrawing not likely to be satisfied on or terminating prior to the Commitment Letters or that Closing Date.
(c) If any of the events set forth in Sections 6.15(b)(i) or 6.15(b) above(ii) above occurs with respect to any of the debt financing contemplated by the Debt Commitment Letters, Purchaser shall (subject to Section 6.15(a)) use its reasonable commercial efforts to obtain, and if obtained will accept and provide to Seller a copy of the related commitment letter, an alternative debt financing in an amount necessary to replace the corresponding amounts that are or will no longer be available as a result of such event; provided that Purchaser shall not be required to seek or accept any such replacement debt financing if the terms or conditions thereof are not substantially comparable to the Financing those terms and conditions in the debt financing to be replaced, and with respect to economic terms and conditions (including, without limitation, with respect to pricing, maturity or amortization), are not as favorable in all material respects to Purchaser as the terms and conditions for the debt financing that will be replaced, in each case as set forth in the relevant Debt Commitment Letters cannot Letter.
(d) Seller agrees, at its sole expense, to provide Purchaser with such cooperation in connection with the arrangement of the financings contemplated by the Debt Commitment Letter as may be satisfied reasonably requested by Purchaser, including:
(i) causing senior management of the Business to participate in meetings, due diligence sessions, management presentation sessions, “road shows” and will not be waived or sessions with rating agencies and providing assistance to Purchaser in connection with the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents and all information (including financial information) customarily contained therein;
(ii) Acquiror has agreed to any amendment to facilitating the pledge of collateral as contemplated by the Debt Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion Letter effective as of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its Closing;
(iii) using commercially reasonable efforts to secure all or cause Seller’s independent auditors to provide customary consents and comfort letters with respect to the Business Financial Statements, other financial information and such portion other matters that are customarily covered by auditors’ comfort letters, in connection with the completion of the Financing on terms no less favorable financings contemplated by the Debt Commitment Letter;
(iv) permitting Purchaser’s representatives access to the supporting documentation available to Seller with respect to the preparation of the Audited Financial Statements and the Business Financial Statements and requesting that Seller’s independent auditors provide Purchaser’s representatives access to the auditors’ work papers relating to the Audited Financial Statements and the Business Financial Statements (to the extent applicable); and
(v) providing such financial and other information reasonably available and in its possession regarding the Business, the Purchased Assets, the Transferred Business Intellectual Property or the Transferred Business Intellectual Property Rights as may be required by the Debt Commitment Letter; provided, that notwithstanding the foregoing Seller shall not be required to take any action that would materially interfere with the ongoing operations of Seller or its Subsidiaries, including the Business as well as other businesses of Seller or its Subsidiaries, and neither Seller nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any obligation to any third party in connection with such cooperation.
(e) Purchaser acknowledges and agrees that:
(i) except in the aggregate case of breach of a representation or warranty in Article IV, none of Seller, any of Seller’s Subsidiaries or any of their respective directors, officers, employees, representatives or agents shall have any Liability for any information (including information regarding the Business, the Purchased Assets, the Transferred Business Intellectual Property or the Transferred Business Intellectual Property Rights) included in offering or marketing material distributed, or otherwise made available, to Acquiror than investors in Purchaser or other participants in any financing related to the terms contained transactions contemplated by this Agreement;
(ii) each such prospective investor or participant will be advised that none of Seller, any of Seller’s Subsidiaries or any of their respective directors, officers, employees, representatives or agents makes any representation or warranty with respect to such information and disclaims any Liability therefor (and any written materials distributed or made available to such investors or participants will include appropriate legends to such effect); and
(iii) Purchaser shall indemnify and hold harmless each of Seller, Seller’s Affiliates and their respective directors, officers, employees, representatives or agents from and against any and all Losses suffered or incurred by any of them arising out of any third party claim relating to the financing contemplated by Section 6.15.
(f) Nothing in this Agreement or the Confidentiality Agreement or the confidentiality agreements to which Seller and Affiliates of the parties to the Equity Commitment Letters. Acquiror shall immediately notify Holdings if letters are party will prohibit any Lenders shall notify Acquiror or Acquiror Sub that it is amending of the parties to the respective Equity Commitment LettersLetters from syndicating their respective Equity Commitment Letters so long as such parties hold a majority of the equity commitments thereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Agilent Technologies Inc)
Financing. (a) Acquiror Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall comply with all terms not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments (except for any such amendments, modifications or waivers which, individually or in the aggregate, would not be reasonably expected to prevent, delay or impair the availability of the Commitment Letters and shall take all actions required on their part Financing under the terms Financing Commitments or the consummation of the Commitment LettersTransactions) without the prior written consent of the Sellers, including without limitationwhich consent shall not be unreasonably withheld, providing conditioned or delayed. Without limiting the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order generality of the foregoing, Purchaser shall use reasonable best efforts to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or Acquiror Sub obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that it is withdrawing or terminating are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the Commitment Letters or that any of the conditions Lenders and other third parties and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contemplated by the Financing Commitments, (iv) consummate the Financing at or prior to the Closing, (v) enforce its rights under the Financing Commitments in the Commitment Letters canevent of a breach or other failure to fund by a Lender that impedes or delays the Closing, and (vi) otherwise cause the Lenders to fund on the Closing Date the Financing required to consummate the Transactions (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be satisfied required to agree to terms and conditions that are, in the aggregate, materially less favorable to Purchaser than those set forth in the Financing Commitments. Upon the reasonable request of the Sellers, Purchaser shall inform the Sellers of the status of its efforts to arrange the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Purchaser shall give the Sellers prompt notice: (A) upon becoming aware of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by Purchaser, or to the Knowledge of Purchaser, any other party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing of any provisions of any Financing Commitment or any definitive document related to the Financing or (y) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing; and (C) if for any reason Purchaser believes in good faith that (x) there is a reasonable likelihood to be a material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing or (y) it is reasonably likely that it will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing on the terms, 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, but in any event within five (5) Business Days after the date the Sellers deliver to Purchaser a written request, Purchaser shall provide any information reasonably requested by the Sellers relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any conditions contained in the Financing Commitments or any definitive agreement related thereto. If any portion of the Financing becomes unavailable for any reason under on the Commitment Lettersterms and conditions contemplated in the Financing Commitments, Acquiror Purchaser shall use its reasonable best efforts to arrange and obtain financing as promptly as practicable from alternative sources in an amount sufficient to replace the Financing as promptly as practicable and without the imposition of any new or additional conditions and without any adverse amendment to existing conditions to the Financing, and Purchaser’s obligations under this Section 7.05(a) shall apply to such alternative financing and the agreements related thereto as if such alternative financing is the Financing and any commitment related thereto is the Financing Commitments; provided, that Purchaser shall not be required to agree to terms and conditions with respect to any alternative financing that are, in the aggregate, materially less favorable in any material respect to Purchaser than those set forth in the Financing Commitments.
(b) Prior to the Closing, the Sellers shall use their commercially reasonable efforts to secure provide, and shall use their commercially reasonable efforts to cause their Affiliates and their respective officers, directors, employees and agents to provide, at Purchaser’s sole cost and expense, all or such portion reasonable cooperation in connection with the arrangement of the Financing on terms no less favorable as may be reasonably requested by Purchaser and that is customary in connection with Purchaser’s efforts to obtain the Financing, including to (i) provide readily-available financial and other information relating to the Sellers to the Lenders (including information to be used in the aggregate preparation of an informational package regarding the business, operations, financial projections and prospects of Purchaser and the Business and Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Lenders, to Acquiror than the terms contained extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (ii) assist in the Commitment Letterspreparation of bank information memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and their Affiliates to execute and deliver (and use commercially reasonable efforts to obtain from the Sellers’ and their Affiliates’ advisors) at, or conditional upon the Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Purchaser, (iv) assist in the preparation of, entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of one or more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements, including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Sellers provide their reasonable cooperation and assistance, (vi) cooperate reasonably with the Lenders’ due diligence, to the extent customary and reasonable, (vii) refrain from pursuing any financing transactions that may delay, impede or otherwise adversely affect the Financing and (viii) assist Purchaser and the Lenders to benefit from the existing lending relationships of the Sellers and their Affiliates; provided, however, that no requested cooperation pursuant to this Section 7.05(b) shall delay the Closing, or unreasonably interfere with the ongoing operations of Sellers and the Sellers shall not (A) be required to pay any commitment or other similar fee, (B) have any Liability under any credit agreement, note purchase agreement, indenture, hedging agreement or other agreement or document related to the Financing, or (C) incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Acquiror Purchaser shall, without the right of set-off, indemnify and hold harmless Sellers and their respective subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with (1) any action taken by them at the request of Purchaser pursuant to this Section 7.05(b) or in connection with the arrangement of the Financing or (2) any information utilized in connection therewith (other than information relation to Sellers approved by Sellers for use therein). This indemnification shall immediately notify Holdings if any Lenders survive termination of this Agreement. All material, non-public information regarding Sellers and their Affiliates provided to Purchaser or its Representative pursuant to this Section 7.05(b) shall notify Acquiror or Acquiror Sub that it is amending be kept confidential by them in accordance with the Commitment LettersConfidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 1 contract
Samples: Residential Servicing Asset Purchase Agreement (Nationstar Mortgage LLC)
Financing. (a) Acquiror Parent and Acquiror Merger Sub shall comply use their respective commercially reasonable efforts to obtain the Financing on the terms and conditions set forth in the Commitment Letter (or terms not materially less favorable to Parent or the Company (including with respect to the conditionality thereof)), including (i) maintaining in effect the Commitment Letter and negotiating definitive agreements with respect to the Commitment Letter on the terms and conditions set forth in the Commitment Letter (or on terms not materially less favorable to Parent or Merger Sub than the terms and conditions in the Commitment Letter), (ii) satisfying on a timely basis all terms conditions applicable to Parent and Merger Sub set forth in such definitive agreements that are within their reasonable control, and (iii) consummating the Financing contemplated by the Commitment Letter at or prior to the Closing (and in any event prior to the Termination Date). In the event that all conditions in the Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall use their commercially reasonable efforts to cause such lenders and the other Persons providing such Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under the Commitment Letter. Neither Parent nor Merger Sub shall amend, alter, or waive, or agree to amend, alter or waive (in any case whether by action or inaction), any term of the Commitment Letters and shall take all actions required on their part under Letter without the terms prior written consent of the Commitment LettersCompany if such amendment, including without limitation, providing alteration or waiver reduces the Lenders with all information aggregate amount of the Financing or amends the conditions precedent to the Financing in a manner that they may request and entering into appropriate loan agreements would reasonably be expected to delay or other agreements in order prevent the Closing Date or make the funding of the Financing less likely to obtain the Financingoccur.
(b) In Until the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any earlier to occur of the conditions termination of this Agreement pursuant to Article VII and the Financing in Effective Time, the Commitment Letters cannot be satisfied Company shall (and will not be waived or (iithe Company shall cause each of its Subsidiaries to) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")provide, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror and shall use its commercially reasonable efforts to secure all cause its Representatives, to cooperate with Parent and the Financing Sources to provide financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or the Financing Sources; provided that (i) the Company shall not be required to pay any commitment or other similar fee or to incur any other liability in connection with the Financing, except following the Effective Time, (ii) such portion cooperation does not unreasonably interfere with the ongoing operations of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersCompany.
Appears in 1 contract
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror The Buyer shall use its commercially reasonable efforts to secure arrange the Debt Financing on the terms and conditions described in the Commitment Letter, including using its commercially reasonable efforts to (i) negotiate definitive agreements with respect thereto on terms and conditions contained therein, (ii) satisfy on a timely basis all conditions applicable to the Buyer in such definitive agreements that are within its control and (iii) consummate the Debt Financing at the Closing. The Buyer shall obtain the Equity Financing upon satisfaction or such waiver of (A) the conditions to Closing set forth in Article VII and Article VIII and (B) the conditions to the funding of the Debt Financing (or any alternative financing) (in the case of clauses (A) and (B), other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions). In the event any portion of the Debt Financing becomes unavailable on terms no less favorable in the aggregate to Acquiror than the terms contained and conditions contemplated in the Commitment LettersLetter, the Buyer shall use its commercially reasonable efforts to arrange to obtain any such portion from alternative sources on terms that are not materially less beneficial to the Buyer and the Transferred Companies as promptly as practicable following the occurrence of such event. Acquiror The Buyer shall immediately notify Holdings if give the Sellers notice of any Lenders shall notify Acquiror or Acquiror Sub that it is amending material breach by any party to the Commitment LettersLetter or any termination of the Commitment Letter promptly upon becoming aware of any such breach or termination. The Buyer shall keep the Sellers informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing. The Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Equity Funding Letter without obtaining the Sellers’ prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, if the Debt Financing (or any alternative financing) has not been obtained, the Buyer shall continue to be obligated to consummate the Transaction on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the conditions set forth in Article VII and to the Buyer’s rights under Section 11.1, regardless of whether the Buyer has complied with all of its other obligations under this Agreement (including its obligations under this Section 6.17(a)).
(b) The Sellers agree to provide, and shall cause the Companies and Subsidiaries and the Sellers’, the Companies’ and Subsidiaries’ respective officers, employees, representatives, and advisors, including legal and accounting, of the Sellers, the Companies and Subsidiaries to provide, all reasonable cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by the Buyer (provided, that such requested cooperation does not (i) unreasonably interfere with the ongoing operations of any Seller, any Company and any Subsidiary, (ii) cause any representation or warranty in this Agreement to be breached, (iii) cause any condition to Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement or any material agreement to which any Seller or any Company or Subsidiary is a party or (iv) involve any binding commitment by any Seller or any Company or Subsidiary which commitment is not conditioned on the Closing and does not terminate without liability to the Sellers, any Company and any Subsidiary upon the termination of this Agreement), including (A) participation in meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with rating agencies, (B) upon request, furnishing the Buyer and its financing sources with financial and other pertinent information regarding the Transferred Companies and Foreign Assets as may be reasonably requested by the Buyer, (C) assisting the Buyer and its financing sources in the preparation of offering documents, materials for rating agency presentations, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the financing, (D) executing and delivering at Closing any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by the Buyer (including using commercially reasonable efforts to facilitate any amendments to the articles of incorporation, bylaws or other organizational documents of any Transferred Company or Subsidiary reasonably requested by the Buyer in connection with such security or other financing documents), (E) furnishing the Buyer and its financing sources with financial and other pertinent information regarding the Companies and the Subsidiaries as may be reasonably requested by the Buyer, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act, to consummate the offerings of debt securities contemplated by the Debt Commitment Letters at the time during the Company’s fiscal year such offerings will be made, (F) using commercially reasonable efforts to obtain management representation letters, accountants’ comfort and reliance letters and opinions, legal opinions, surveys and title insurance as reasonably requested by the Buyer, and (G) reasonably cooperating with the marketing efforts of the Buyer and its financing sources for any debt raised by the Buyer to complete the Transaction; provided, that none of the Sellers, any Company or any Subsidiary shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Debt Financing, except, in the case of the Transferred Companies and Subsidiaries, following the Closing. The Buyer shall, promptly upon request by the Sellers, reimburse the Sellers, as the case may be, for all reasonable out-of-pocket costs incurred by any Seller, any Company or any Subsidiary in connection with such cooperation. The Buyer shall indemnify and hold harmless each of the Sellers, Transferred Companies and Subsidiaries and their respective representatives for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (including reasonable fees for outside counsel, accountants and other outside consultants) suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith (other than historical information relating to the Sellers, any Company or any Subsidiary), except in the case of any Seller’s, any Transferred Company’s or Subsidiary’s or any of their respective representatives’ gross negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the condition set forth in Section 7.1, as it applies to the Sellers’ obligations under this Section 6.17(b), shall be deemed satisfied unless (i) the Debt Financing (or any alternative financing) has not been obtained primarily as a result of the Sellers’ material breach of their obligations under this Section 6.17(b) and (ii) such material breach has had a material and adverse effect on the Buyer’s ability to obtain the Debt Financing (or any alternative financing).
(c) All non-public or otherwise confidential information regarding any Seller, any Company, any Subsidiary, the Foreign Assets or the Business obtained by the Buyer or its representatives pursuant to Section 6.17(b) shall be kept confidential in accordance with the Non-Disclosure Agreement.
Appears in 1 contract
Financing. (a) Acquiror Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and Acquiror Sub to do, or cause to be done, all things necessary, proper or advisable, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be required, to arrange the Financing as promptly as reasonably practicable. For the avoidance of doubt and notwithstanding anything to the contrary, Buyer acknowledges and agrees that its obligation to consummate the Equity Purchase on the terms and subject to the conditions set forth herein is not conditioned upon the availability or consummation of the Financing, the availability of any replacement financing or receipt of the proceeds therefrom. If any portion of the Financing becomes unavailable or Buyer becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case on the terms and conditions set forth in the Commitment Letter, and such portion is required to consummate the Equity Purchase, Buyer shall, as promptly as practicable, use its commercially reasonable efforts to arrange and obtain alternative financing from alternative financial institutions in an amount sufficient to consummate the Equity Purchase on terms no less favorable to Buyer than those set forth in the Commitment Letter. Buyer shall comply with all terms give the Company prompt written notice of any material breach by any party to the Commitment Letter or any condition to the Financing becoming unable to be satisfied, in each case of which Buyer becomes aware, or of any termination of the Commitment Letters and Letter. Buyer shall take all actions required keep the Company informed on their part under the terms a reasonably current basis of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain status of the Financing.
(b) In Subject to the event that last sentence of Section 7.01, the Company and each Seller Entity shall provide and shall cause their Subsidiaries and respective representatives to provide such cooperation in connection with the arrangement of the Financing or any alternative financing to finance in whole or in part the Equity Purchase as may be reasonably requested by Buyer, including by (i) on or as promptly as practicable following the date of this Agreement, (x) furnishing to Buyer and its financing sources pertinent information with respect to the Company and its Subsidiaries and their respective operations to be included in any Lender shall notify Acquiror prospectus, offering memorandum, rating agency presentation, bank book, information memorandum, lender presentation or Acquiror Sub that it is withdrawing similar document or terminating marketing material, including the Commitment Letters or that any information set forth on Schedule 7.03(b)(i) of the conditions to the Financing Company Disclosure Schedule, and (y) assisting in the Commitment Letters cannot be satisfied and will not be waived or preparation of such documents, (ii) Acquiror has agreed furnishing the information set forth in clauses (ii) and (iii) of Schedule 7.03(b) of the Company Disclosure Schedule on the dates set forth therein, (iii) making the Company’s chief executive officer and chief financial officer (but not other Company personnel, except as the Company may agree) available to any amendment participate in meetings with prospective investors or lenders or rating agencies, (iv) causing its independent accountants to the Commitment Letters that establish additional conditions provide reasonable assistance to the Lenders' obligations Buyer consistent with their customary practice, to participate in customary due diligence and to provide the Financing items listed in Section 7.03(b) of the Company Disclosure Schedule, (v) providing reasonable cooperation with prospective investors, arrangers, lenders, underwriters and their respective advisors in performing their due diligence; provided that none of the Company, the Seller Entities or otherwise makes it more difficult for Acquiror any of their Subsidiaries shall be required to obtain pay any fee or enter into any definitive agreement or incur any other liability in connection with the Financing prior to the Closing; and provided further that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company, the Seller Entities and their respective Subsidiaries.
(unless Holdings has agreed c) Buyer shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Seller Entities, the Company, their Subsidiaries or any of their respective representatives in writing that Acquiror can effect connection with such cooperation (other than any such amendmentcosts incurred in connection with preparing and providing the information set forth on Section 7.03(b) (each a "Funding Termination Event"of the Company Disclosure Schedule), then Acquiror whether or not the Closing occurs. Buyer shall immediately notify Holdings of such Funding Termination Event. In indemnify and hold harmless the event Company, its Subsidiaries and their respective representatives from and against any and all losses or any portion damages suffered or incurred by them in connection with the arrangement of the Financing becomes unavailable for and any reason under use of any information utilized in connection therewith, whether or not the Commitment Letters, Acquiror shall Closing occurs. The Company hereby consents to the use of its commercially reasonable efforts and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to secure all nor reasonably likely to harm or such portion disparage the Company or any of it Subsidiaries or the reputation or goodwill of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if Company or any Lenders shall notify Acquiror of its Subsidiaries and its or Acquiror Sub that it is amending the Commitment Letterstheir marks.
Appears in 1 contract
Financing. (a) Acquiror Each of Parent and Acquiror Acquisition Sub shall, and shall cause its Subsidiaries to use reasonable best efforts to arrange and obtain the proceeds of the Financing on the terms and conditions described in the Financing Commitments (including any “flex” provisions applicable to the Debt Financing), including using (and causing its Subsidiaries to use) their respective reasonable best efforts to: (i) comply with and maintain in full force and effect the Financing Commitments in accordance with the terms and conditions thereof, (ii) enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments (including any “flex” provisions applicable to the Debt Financing), which agreements shall be in effect as promptly as practicable after the date hereof, but in no event later than the Closing, (iii) satisfy on a timely basis (or obtain a waiver of) all terms conditions applicable to Parent, Acquisition Sub or their respective Subsidiaries in the Debt Commitment Letter (or definitive agreements entered into with respect to the Debt Commitment Letter), (iv) subject to the satisfaction of all conditions set forth in the Debt Commitment Letter and all conditions to the consummation of the Closing have occurred, solely to the extent necessary, enforce its rights under the Debt Commitment Letters Letter in the event of a breach by any Debt Financing Source that impedes or delays (or could reasonably be expected to impede or delay) the Closing and, if necessary, seek specific performance of the Financing Sources of their obligations thereunder and (v) draw down upon and consummate the Financing at or prior to the Closing. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.11 shall take all actions required require, and in no event shall the reasonable best efforts of Parent or Acquisition Sub be deemed or construed to require, Parent or Acquisition Sub to seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter. Neither Parent nor its Affiliates shall agree to any amendments, supplement or other modifications to, obtain any replacement of, or grant any waivers of, any condition or other provision of the Equity Commitment Letter without the prior written consent of the Company. Neither Parent nor its Affiliates shall agree to any amendments, supplement or other modifications to, obtain any replacement of, or grant any waivers of, any condition or other provision under the Debt Financing (other than pursuant to any flex provisions set forth in the Debt Commitment Letter) without the prior written consent of the Company if such amendments, modifications or waivers (i) would reduce the aggregate amount of the net proceeds of the Debt Financing (other than as a result of imposition of any original issue discount permitted to be imposed on their part the date hereof, but including by changing the amount of fees or other amounts to be paid (including any modification to the original issue discount as in effect on the date hereof) with respect to the Debt Financing), (ii) would impose new or additional conditions or otherwise expand, amend or modify any of the conditions under the Debt Commitment Letter or (iii) that would or would reasonably be expected to (x) prevent, delay or impair the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement or (y) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Financing Commitments. Prior to a termination of this Agreement in accordance with the terms of Article VIII, Parent shall not permit, release or consent to the Commitment Letterswithdrawal, including without limitationtermination, providing repudiation or rescission of the Lenders Financing Commitments or any definitive agreement with all information that they may request respect to the Financing and entering into appropriate loan agreements shall not release or other agreements in order consent to obtain the termination of the obligations of any Financing Source under the Financing, in each case, without the prior written consent of the Company.
(b) In the event that any portion of the Debt Financing becomes or could reasonably be expected to become unavailable in the manner or from the sources contemplated in the Debt Commitment Letter (including any flex provisions applicable thereto), (i) any Lender Parent shall promptly notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied Company, and will not be waived or (ii) Acquiror has agreed Parent and Acquisition Sub shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to arrange and obtain, and to negotiate and enter into definitive agreements with respect to, alternative debt financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement upon terms and conditions not materially less favorable, taken as a whole, to Parent and Acquisition Sub or the Company than those in the Debt Commitment Letter, as promptly as practicable following the occurrence of such event; provided, however, that Parent and Acquisition Sub shall not be required to obtain financing which (in the reasonable judgment of Parent) includes terms and conditions materially less favorable (taking into account any amendment “market flex” provisions), taken as a whole, to Parent and Acquisition Sub, in each case relative to those in the Debt Financing being replaced; provided, further that any such replacement of any part of the Debt Financing that amends the Debt Commitment Letter and/or substitution of all or any portion of the Debt Financing shall not, without the prior written consent of the Company (A) reduce the aggregate amount of the Debt Financing available on the Closing Date from that contemplated in the Debt Commitment Letter, (B) impose new or additional conditions precedent or otherwise expand upon, amend or modify the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letters Letter in any respect that establish additional would make such conditions less likely to be satisfied by the Lenders' obligations Closing Date or (C) prevent, impede, delay or adversely impact, or be reasonably expected to provide prevent, impede, delay or adversely impact the consummation of the transactions contemplated by this Agreement. The definitive agreements entered into pursuant to this Section 6.11(c) or Section 6.11(a)(ii) are referred to in this Agreement, collectively, as the “Financing Agreements.”
(c) Each of Parent and Acquisition Sub acknowledges and agrees that neither the obtaining of the Financing or otherwise makes it more difficult for Acquiror any alternative financing is a condition to the Merger or the Closing. Parent and Acquisition Sub agree to consummate the Merger and the other transactions contemplated by this Agreement regardless of its ability to obtain the Financing or any alternative Financing, subject to the applicable conditions set forth in Section 7.1, Section 7.3 and the termination rights set forth in Article VIII.
(unless Holdings has agreed d) Parent and Acquisition Sub acknowledge and agree that the Company or its Subsidiaries or their respective Affiliates and its and their and their Affiliates’ respective Representatives shall not incur any liability to any Person under any financing that Parent and Acquisition Sub may raise in writing connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.11 or Section 6.12 and that Acquiror can effect Parent and Acquisition Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Affiliates and its 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 the Financing (including any action taken in accordance with this Section 6.11) and any information utilized in connection therewith.
(e) Parent shall (i) furnish the Company with complete, correct and executed copies of each amendment, waiver or other modification of the Financing Commitments and of the Financing Agreements or any alternative financing agreement promptly upon their execution, (ii) give the Company prompt notice of any breach or threatened breach by any party of any of the Financing Commitments, any alternative financing commitment, the Financing Agreements, or any alternative financing agreement of which Parent or Acquisition Sub becomes aware or any termination or threatened termination thereof of which Parent or Acquisition Sub becomes aware or, in each case, any written notice or other communication with respect to any of the foregoing, (iii) give the Company prompt notice of each material dispute or disagreement between or among the parties to the Financing Commitments or Financing Agreements, other than material disputes or disagreements that occur in the ordinary course of negotiations of the Financing Commitments or Financing Agreements and only to the extent Parent reasonable believes such amendmentmaterial dispute or disagreement would give rise to failure of the conditions set forth in the Debt Commitment Letter or delay the funding of the Debt Commitment Letter at Closing; (iv) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event Company if for any reason Parent no longer believes in good faith that it will be able to obtain all or any portion of the Financing becomes unavailable contemplated by the Financing Commitments on the terms described therein and (iv) otherwise keep the Company reasonably and promptly informed of the status of its efforts to arrange the Financing (or any alternative financing), including by providing the Company with drafts of the definitive agreements or offering memoranda relating to the Financing a reasonable period of time prior to their execution or use.
(f) Notwithstanding anything to the contrary contained in this Agreement, (a) the Company, its Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders shall not have any rights or claims against any Debt Financing Source, in any way relating to this Agreement or any of the transactions contemplated hereby, including the Merger, including any dispute arising out of or relating in any way to the Debt Commitment Letters or the performance thereof or the financings contemplated thereby, whether at Law or equity, in contract, in tort or otherwise and any such rights or claims are hereby waived, disclaimed, and released in full, and (b) no Debt Financing Source shall have any liability (whether in contract, in tort or otherwise) to the Company and its Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders for any obligations or liabilities of any party hereto under this Agreement or for any claim based on, in respect of, or by reason under of, the transactions contemplated hereby, including the Merger, and thereby, including any dispute arising out of or relating in any way to the Debt Commitment LettersLetters or the performance thereof or the financings contemplated thereby, Acquiror shall use its commercially reasonable efforts whether at Law or equity, in contract, in tort or otherwise. Notwithstanding anything to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contrary contained in this Agreement, the Commitment Letters. Acquiror Debt Financing Sources are intended third-party beneficiaries of, and shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending be entitled to the Commitment Lettersprotections of this Section 6.11(f).
Appears in 1 contract
Financing. (a) Acquiror Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms of and conditions described in the Commitment Letters and shall take all actions required on their part under the terms of the Commitment LettersLetter, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order using reasonable best efforts to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating maintain in effect the Commitment Letters or that any of Letter for the commitment period set forth therein, (ii) negotiate definitive agreements with respect thereto on the terms and conditions set forth in the Commitment Letter (the “Definitive Agreements”), (iii) satisfy on a timely basis all conditions to the funding of the Financing in that are within its control and comply with its obligations and enforce its rights under the Commitment Letters cannot Letter and (iv) seek to obtain such third-party consents as may be satisfied and will not be waived reasonably required in connection with the Financing. Parent shall have the right from time to time to amend, replace, supplement or (ii) Acquiror has agreed to otherwise modify, or waive any amendment to of its rights under, the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing Letter and/or substitute other debt or otherwise makes it more difficult equity financing for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for from the same and/or alternative financing sources (including to reduce the amount of the Financing), provided that any reason under such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment LettersLetter (A) shall not expand upon the conditions precedent to the Financing as set forth in the original Commitment Letter (whether by adding additional conditions precedent or modifying conditions precedent contained in the original Commitment Letter), Acquiror (B) shall use its commercially reasonable efforts provide for a financing amount not less than the amount necessary to secure all satisfy the Required Amounts in full after taking into account the Specified Financial Resources, and (C) shall not prevent or such materially delay the consummation of the Mergers and the other transactions contemplated by this Agreement (any financing and related commitment satisfying the foregoing conditions (A)-(C), a “Qualifying Financing”). If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions contemplated in the Commitment Letter and such portion is reasonably required to satisfy the Required Amounts in full, Parent shall (1) notify the Company and (2) seek to arrange and obtain Qualifying Financing as promptly as reasonably practicable following the occurrence of such event. Parent shall give the Company prompt notice of any material breach by any party to the Commitment Letter (or commitment for any alternative financing obtained in accordance with this Section 6.14) or of any condition not likely to be satisfied, in each case, of which Parent becomes aware or any termination of the Commitment Letter (or commitment for any alternative financing obtained in accordance with this Section 6.14). Parent shall provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements, including fee letters and engagement letters). Parent shall refrain and shall cause its Affiliates to refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the conditions contained in the Commitment Letter or in any Definitive Agreement. Parent shall keep the Company informed on a prompt basis and in reasonable detail of the status of its efforts to arrange the Financing (or any replacement Financing). Parent shall use its reasonable best efforts to enforce its rights under the Commitment Letter and to cause the lenders and the other Persons providing such Financing (or any alternative financing) to fund the Financing (or alternative financing) required to consummate the Merger on the Closing Date in accordance with the terms of such Financing (or alternative financing), including by commencing a litigation proceeding against any breaching financial institution or institutions in which Parent will use its reasonable best efforts to compel such breaching institution or institutions to provide its portion of such Financing as required. Parent shall use reasonable best efforts to maintain available to itself sufficient Specified Financial Resources such that the representation contained in the third-to-last sentence of Section 4.02(k) remains true and correct as of each date from and after the date hereof until the earlier to occur of the Effective time and the termination of this Agreement in accordance with Section 8.01.
(b) The Company shall provide, and shall cause its Subsidiaries to provide, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to provide, at Parent’s sole expense, such cooperation in connection with the Financing as Parent shall reasonably request (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to the Financing Sources (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Financing as contemplated by the Commitment Letter, (ii) cause its senior management and other appropriate employees of the Company to participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, (iii) assist in the preparation of such documents and materials as may be reasonably required in connection with the Financing, including (A) any customary offering documents, private placement memoranda, bank information memoranda, Form 8-Ks, registration statements, prospectuses and similar documents (including historical and pro forma financial statements and information) for any of the Financing, and (B) materials for rating agency presentations, (iv) consent to the use of the Company’s and its Subsidiaries’ logos to the extent customary in connection with marketing the Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries, (v) execute and deliver (or use reasonable best efforts to obtain from their advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from their advisors), customary certificates (but, for the avoidance of doubt, excluding any certificate with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Parent as necessary and customary in connection with the Financing, (vi) assist in the preparation of and entering into one or more credit agreements and other loan documents, underwriting or note purchase agreements, indentures, currency or interest hedging agreements, or other agreements; provided, however, that no obligation of the Company or any of its Subsidiaries under any such agreements shall be effective until the Effective Time, (vii) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including using reasonable best efforts to provide customary comfort letters to the underwriters in connection with the initial purchase of any securities in connection with the Financing and to provide customary consents to inclusion of their audit reports in registration statements of the Company, (viii) provide authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates or securities, (ix) use its reasonable best efforts to facilitate contact between the Financing Sources and the principal existing lenders of the Company, and (x) cooperate reasonably with Parent’s Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company; provided that, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (1) be required to pay any commitment or other similar fee, (2) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), (3) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (4) be required to take any action in their capacity as a director of the Company or any of its Subsidiaries with respect to the Financing (or any alternative financing) (provided that the Company shall cooperate with Parent, if requested by Parent, to appoint Parent’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Financing as of the Closing); provided, further, that all non-public or otherwise confidential information regarding the Company obtained by Parent, HoldCo or their Representatives pursuant to this Section 6.14 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and HoldCo shall be permitted to disclose such customary and reasonable information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 6.14, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 6.14(b). In the event that the Commitment Letter or the Definitive Agreements are amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 6.14(a), or if Parent substitutes other debt or equity financing for all or a portion of the Financing in accordance with Section 6.14(a), the Company shall comply with its covenants in the foregoing provisions of this Section 6.14(b) with respect to the Commitment Letter or the Definitive Agreements, as applicable, as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to the same extent that the Company would have been obligated to comply with respect to the Financing, but only to the extent that any such cooperation is not materially more burdensome to the Company, its Subsidiaries or their respective Representatives, as applicable.
(c) It is agreed by the parties that Parent shall not be obligated to (i) obtain alternative financing on terms no materially less favorable in the aggregate to Acquiror Parent than the terms contained and conditions set forth in the Commitment Letters. Acquiror shall immediately notify Holdings if Letter or (ii) (A) issue any Lenders shall notify Acquiror or Acquiror Sub that it is amending equity securities, (B) except in connection with accounts receivable financings, working capital improvements and sale-leaseback arrangements and similar transactions contemplated by the Commitment LettersLetter, divest, sell, license or otherwise dispose of (including holding separate pending such disposition) any assets, or (C) engage in any transaction similar to the transactions described in the foregoing clauses (A) and (B), in each case in connection with obtaining the Financing as required (it being understood, however, that nothing in this Section 6.14(c) shall limit or reduce Parent’s obligations pursuant to Section 6.04); provided that Parent’s failure, in the case of clause (i), to obtain alternative or replacement financing (regardless of the favorability or unfavorability of terms and regardless of availability), or its failure to take (or election not to take), in the case of clause (ii) any of the actions referred to in clauses (ii)(A) – (C) shall not relieve Parent from any obligation or consequence relating to a Financing Failure.
Appears in 1 contract
Samples: Merger Agreement (Talecris Biotherapeutics Holdings Corp.)
Financing. (a) Acquiror Buyer shall use, and Acquiror Sub shall cause its applicable Affiliates to use, its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the Debt Financing (to the extent reasonably required to consummate the transactions contemplated hereby), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Debt Financing, (ii) satisfy on a timely basis all conditions, and otherwise comply with all terms, applicable to Buyer or any of its Affiliates with respect to the Debt Financing that are within its control (or, if deemed advisable by Buyer, seek the waiver of such conditions), and (iii) subject to the terms and conditions set forth in the definitive documentation in respect of the Commitment Letters Debt Financing, cause the Debt Financing Sources to provide the Debt Financing and shall take all actions required draw down upon and consummate the Debt Financing as contemplated by such definitive documentation, in each case, on their part under or prior to the terms Closing Date. In the event any portion of the Commitment LettersDebt Financing becomes unavailable, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order Buyer shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less beneficial, in the aggregate, to Buyer, in an amount sufficient to consummate the transactions contemplated by this Agreement (“Alternative Financing”). Upon request from Seller, Buyer shall keep Seller informed on a reasonably current basis of material developments relating to the Debt Financing. For purposes of this Section 6.11, references to “Debt Financing” shall include any Alternative Financing.
(b) In Seller and the event that (i) any Lender Company shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied each use commercially reasonable efforts to, and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or cause Seller’s and the Company’s respective Representatives to, provide to Buyer such portion cooperation as is reasonably requested by Buyer and the Debt Financing Sources, in connection with the Debt Financing (in each case at Buyer’s sole cost and expense and provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including:
(i) assisting in preparation for and participation in marketing efforts (including a reasonable number of lender meetings and calls), and participating in a reasonable number of meetings, drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions) and sessions with existing and prospective lenders, investors and ratings agencies and assisting Buyer in obtaining ratings, in each case as contemplated by and/or reasonably required in connection with the Debt Financing, and in each case on reasonable advance notice and at reasonable locations;
(ii) reasonably assisting Buyer and the Debt Financing on terms no less favorable Sources in the aggregate preparation of (A) any offering memorandum, bank information memorandum, lender presentations and similar marketing documents for the Debt Financing, including the execution and delivery of customary representation letters in connection with offering memoranda and bank information memoranda and reviewing and commenting on Buyer’s draft of a business description and “Management’s Discussion and Analysis” of the Company’s financial statements to Acquiror than be included in marketing materials contemplated by the terms Debt Financing; and (B) materials for rating agency presentations;
(iii) promptly (A) furnishing Buyer and the Debt Financing Sources and their respective Representatives with (x) the Required Financial Information (it being agreed that the financial statements referred to in clause (i) of the definition of Required Financial Information shall be delivered as soon as available but in any event within 40 days after the date hereof) and (y) such other reasonably available, pertinent and customary (as compared to other transactions of this size and nature) information regarding the Racecar Companies as may be reasonably requested by Buyer in order to consummate the Debt Financing and (B) informing Buyer if Seller, the Company or their Subsidiaries shall have knowledge of any facts that would reasonably be expected to require the restatement of any Required Financial Information for such financial statements to comply with GAAP;
(iv) providing Buyer and its representatives access to the books and records of the Racecar Companies and appropriate representations in connection with the preparation of financial statements and other financial data of the Company, and requesting accountants’ consents in connection with the use of the Company’s financial statements in offering documents, prospectuses, Current Reports on Form 8-K and other documents to be filed with the SEC;
(v) providing financial information reasonably available and reasonably requested by Buyer in connection with Buyer’s preparation of pro forma financial information and financial statements to the extent required by the Debt Financing Sources to be included in any marketing documents related to the Debt Financing; provided, that neither Seller nor any of its Subsidiaries or Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information;
(vi) providing monthly financial reports when available consistent with past practice, carving out the Construction Services Business;
(vii) facilitating the execution and delivery as of (but not before) the Closing of any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably required in connection with the closing of the Debt Financing and otherwise facilitating the pledging of collateral thereunder (including cooperation in connection with the pay-off of existing Indebtedness to the extent contemplated by this Agreement and the release of related Encumbrances and termination of security interest, including obtaining customary pay-off letters, liens releases and instruments of discharge or releases to be delivered at the Closing);
(viii) reasonably assisting Buyer in obtaining waivers, consents, estoppels and approvals from other parties to material licenses, leases, Encumbrances and Contracts relating to the Racecar Companies, to the extent reasonably requested in connection with the requirements of the Debt Financing, and to reasonably assist with arranging discussions among Buyer, the providers of the Debt Financing and their respective Representatives with other parties to material licenses, leases, Encumbrances and Contracts as of the Closing in connection with the requirements of the Debt Financing;
(ix) taking reasonably requested actions to (A) permit the Debt Financing Sources to evaluate the Racecar Companies’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations and (B) facilitate the establishment of bank and other accounts and blocked account agreements and lock box arrangements to the extent necessary in connection with the Debt Financing; and
(x) providing all documentation and other information about the Racecar Companies, as reasonably requested by the Debt Financing Sources or Buyer in connection with “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act, to the extent required pursuant to the Debt Financing; provided, that: notwithstanding anything to the contrary contained in this Agreement, (X) neither Seller nor any of its Affiliates shall be required to (a) pay any commitment or other similar fee prior to the Commitment LettersClosing, (b) incur any liability of any kind (or cause their respective Representatives to incur any liability of any kind) in connection with the Debt Financing (in the case of the Racecar Companies, prior to the Closing), (c) enter into any agreement or commitment in connection with the Debt Financing that is not conditioned on the occurrence of the Closing and does not terminate without liability to the Racecar Companies upon failure of the Closing to occur in accordance with this Agreement, or (d) take any action that would (1) cause any representation or warranty in this Agreement to be breached, (2) cause any director, manager, agent, officer or employee of Seller, any Racecar Company or any of their respective Affiliates or Representatives to incur any personal liability or (3) require Seller, any Racecar Company or any of their respective Affiliates or Representatives to provide access to or disclose information that any of them determines would jeopardize any attorney-client privilege and (Y) no director or officer of Seller or any Subsidiary of Seller shall be required to execute any agreement, certificate, document or instrument with respect to the Debt Financing that would be effective prior to the Closing. Acquiror Buyer shall immediately notify Holdings if promptly, upon request by Seller, reimburse Seller for all documented out-of-pocket costs or expenses incurred by Seller, any Lenders of its Affiliates, Subsidiaries and their respective Representatives in complying with their respective covenants pursuant to Section 6.11(d), Section 6.11(e) and this Section 6.11(b) (including, for the avoidance of doubt, the documented out-of-pocket costs and expenses in connection with the preparation of the unaudited, reviewed financial statements required by the definition of Required Financial Information, to the extent incremental to the out-of-pocket costs and expenses of the preparation of the unaudited financial statements of the Company and its Subsidiaries in the Ordinary Course of Business). Further, Buyer shall notify Acquiror indemnify and hold harmless Seller, its Subsidiaries and its and their respective directors, officers and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses interest, awards, judgments and penalties suffered or Acquiror Sub incurred by any of them in connection with the Debt Financing and any information utilized in connection therewith (other than any information provided in writing by or on behalf of Seller or any of its Subsidiaries specifically for use in connection with the Debt Financing), in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, Seller or any of its Subsidiaries or their respective Affiliates and Representatives. The foregoing indemnification obligation shall survive Closing and any termination of this Agreement.
(c) Seller hereby consents to the use of the logos of the Company solely in connection with the Debt Financing.
(d) Seller shall, and shall cause the Racecar Companies to, use commercially reasonable efforts to periodically update any Required Financial Information provided to Buyer and as may be necessary so that it such Required Financial Information is amending (i) Compliant, (ii) meets the Commitment Lettersapplicable requirements set forth in the definition of “Required Financial Information” and (iii) would not, after giving effect to such update(s), result in the Marketing Period to cease to be deemed to have commenced.
(e) Seller shall, and shall cause the Racecar Companies to, use their commercially reasonable efforts to cause their independent auditors to provide, consistent with customary practice, (i) consent to offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon, in each case, to the extent such consent is required, customary auditors reports and customary comfort letters (including “negative assurance” comfort) with respect to financial information relating to the Company, (ii) reasonable assistance in the preparation of pro forma financial statements by Buyer or the applicable Buyer Affiliate and (iii) reasonable assistance and cooperation to Buyer or the applicable Buyer Affiliate, including attending accounting due diligence sessions.
Appears in 1 contract
Samples: Merger Agreement (TopBuild Corp)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Buyer shall use its commercially reasonable efforts to secure obtain, as promptly as practicable following the date of this Agreement, (a) financing reasonably sufficient to pay the Purchase Price and all fees and expenses necessary or such portion related to the consummation of the Financing transactions contemplated by this Agreement (the “Financing”) and (b) Commitment Letters for the Financing. Buyer shall, as promptly as reasonably practicable, deliver to Seller true, correct and complete copies of each executed Commitment Letter and of all other documents related to the Financing. Buyer shall pay, or cause its Affiliates to pay, in full when due any and all commitment fees or other fees in connection with the Commitment Letters and take such other actions necessary or appropriate to cause each Commitment Letter to constitute enforceable obligations of each party thereto. Buyer shall not permit any amendment or modification to be made to, or any waiver of any material provision of or remedy under, any of the Commitment Letters, unless such amendment, modification or waiver, as the case may be, shall have been expressly approved in writing by Seller. Buyer shall comply (and cause its Affiliates to comply) with its obligations under each Commitment Letter and Buyer shall use its commercially reasonable efforts to (a) maintain in effect each executed Commitment Letter, (b) as promptly as practicable negotiate definitive agreements with respect to the Commitment Letters on terms no less favorable in the aggregate to Acquiror than the terms and conditions contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror Letters (or Acquiror Sub that it is amending on terms not materially less favorable to the interests of Seller (including with respect to conditionality and timing), than the terms and conditions in the Commitment Letters), (c) satisfy all conditions applicable to it in the Commitment Letters and such definitive agreements, and (d) enforce all of its rights under the Commitment Letters and obtain and consummate the Financing as promptly as practicable (and in any event prior to the Outside Date). Buyer shall keep Seller informed on a reasonably current basis and in reasonable detail of the status of its efforts to obtain Commitment Letters and arrange the Financing. Without limiting the foregoing, Buyer shall notify Seller promptly, and in any event within two Business Days, if (A) any financing source that is a party to any Commitment Letter (x) notifies Buyer that such source no longer intends to provide financing to Buyer on the terms set forth therein or (y) breaches any of its material obligations under such Commitment Letter or (B) for any reason Buyer no longer believes in good faith that it will be able to obtain all of the Financing. Buyer shall not, and shall not permit any of its Affiliates to, take any action, or enter into any transaction, that could reasonably be expected to prevent the Financing. Buyer acknowledges and agrees that obtaining financing is not a condition to its obligation to consummate the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Trump Entertainment Resorts Holdings Lp)
Financing. (ai) Acquiror Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with to do, or cause to be done all things necessary to arrange, obtain and consummate the Financing on the terms and conditions described in the Commitment Letters (including the exercise of so-called “flex” provisions in the related fee letter) as promptly as practicable (taking into account the timing of the Marketing Period), including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letters until consummation of the Transactions (except that Parent may agree to any modification or amendment of the Commitment Letters solely as permitted pursuant to Section 6.5(b)(iii)) and to negotiate and execute definitive agreements with respect to the Financing on the terms contained in the Commitment Letters (including any “flex” provisions applicable thereto) or on terms that are no less favorable, in any material respect, to Parent than the terms contained in the Commitment Letters (including any “flex” provisions applicable thereto), in each case which terms shall take not in any adverse respect change, expand or impose new conditions to the funding of the Financing at the Closing or reduce the aggregate amount of the Financing available to be funded on the Closing Date or materially affect the timing of the Closing Date (the “Financing Agreements”), (ii) satisfy on a timely basis (taking into account the timing of the Marketing Period) all actions required on conditions in the Commitment Letters and such Financing Agreements which are in their part control and to consummate the Financing at or prior to the Closing, (iii) enforce their rights under the terms Commitment Letters and the Financing Agreements including by taking enforcement action to cause the Financing Sources, lenders and other Persons committing to provide the Financing to comply with their obligations under the Commitment Letters and the Financing Agreements and to fund such Financing at Closing; provided, however, that Parent shall not be required to take any such enforcement action unless all conditions precedent set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that, by their nature, are to be satisfied at the Closing) and (iv) comply with their obligations in all material respects under the Commitment Letters and the Financing Agreements. Parent shall keep the MLP Entities and the Xxxxxxxxx Entities reasonably informed with respect to any material developments concerning the status of the Commitment LettersFinancing. Parent shall provide the MLP Entities and the Xxxxxxxxx Entities, including without limitationupon reasonable request, providing with copies of any primary material Financing Agreements and such other material information and documentation regarding the Lenders with all information that they may request Financing as shall be reasonably necessary to allow the MLP Entities and entering into appropriate loan agreements or other agreements in order the Xxxxxxxxx Entities to obtain monitor the Financingprogress of such financing activities.
(bii) In Parent shall promptly (and in any event no later than three (3) Business Days after becoming aware thereof) notify the event that MLP Entities and the Xxxxxxxxx Entities in writing (i) of any Lender shall notify Acquiror material breach or Acquiror Sub that it is withdrawing default (or terminating any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to the Commitment Letters or that any Financing Agreements of which the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or Parent Entities become aware, (ii) Acquiror has agreed of the receipt by the Parent Entities or any of their controlled Affiliates or Representatives of any written notice or other written communication from any Financing Source, any lender or any other Person with respect to any amendment (A) actual, threatened or alleged breach, default, termination or repudiation by any party to the Commitment Letters that establish additional conditions or any Financing Agreement (including any proposal by any Financing Source, lender or other Person to withdraw, terminate or reduce the amount of the Financing below the amount contemplated by the Commitment Letters) or (B) material dispute or disagreement between or among any parties to the Lenders' obligations to provide the Commitment Letters or any Financing or otherwise makes Agreement (other than ordinary course negotiations), (iii) if for any reason Parent believe in good faith that it more difficult for Acquiror will not be able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under on the terms contemplated by the Commitment LettersLetters or the Financing Agreements and (iv) of the termination or expiration of the Commitment Letters or any Financing Agreement. As soon as reasonably practicable, Acquiror after the MLP Entities or the Xxxxxxxxx Entities deliver to Parent a written request, Parent shall use its commercially reasonable efforts provide any information reasonably requested by the MLP Entities or the Xxxxxxxxx Entities relating to secure any of the circumstances referred to in this Section 6.5(b)(ii).
(iii) Parent shall not permit or consent to any amendment, supplement, modification or waiver to be made to the Commitment Letters if such amendment, supplement, modification or waiver would (A) change, expand or impose new conditions precedent to the funding of the Financing from those set forth therein on the date hereof, (B) materially delay the funding of the Financing thereunder or reasonably be expected to materially impair, delay or prevent the availability of all or such a portion of the Financing or the consummation of the Transaction, (C) reduce the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing (except as set forth in any flex provisions existing on terms no less favorable the date hereof)) unless additional sources are then made available to finance such increase in fees or original issue discount or (D) otherwise adversely affect the ability of the Parent Entities to consummate the Transactions or materially delay the timing of the Closing (collectively, the “Restricted Commitment Letter Amendments”) (except that subject to the limitations set forth in this Section 6.5(b)(iii), Parent may replace, modify, supplement or amend the Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letters as of the date hereof, so long as such replacement, modification, supplement or amendment would not result in the aggregate occurrence of a Restricted Commitment Letter Amendment). For purposes of this Agreement, references to Acquiror than the terms contained in the “Commitment Letters. Acquiror ” shall immediately notify Holdings if any Lenders shall notify Acquiror include such documents as permitted or Acquiror Sub that it is amending the Commitment Lettersrequired by this Section 6.5(b)(iii) to be amended, modified or waived, in each case from and after such amendment, modification or waiver.
Appears in 1 contract
Financing. (a) Acquiror Purchaser shall use its commercially reasonable efforts to take, or cause to be taken all actions and Acquiror Sub shall comply to do, or cause to be done all things necessary to arrange and consummate the Financing on the terms and conditions described in or contemplated by the Financing Commitment Documents (including complying with all any request exercising so-called “flex” provisions contained therein), including using commercially reasonable efforts to (i) maintain in effect the Financing Commitments (as such terms and conditions may be modified or adjusted in accordance with the terms thereof and within the limits of the Commitment Letters “flex” provisions therein) until the Closing; provided, however, that for the avoidance of doubt and shall take all actions required on their part notwithstanding the foregoing, (A) SigmaTEK and Purchaser may amend, replace, supplement or modify the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof, (B) SigmaTEK and Purchaser may amend, supplement or otherwise modify the draft credit agreement as contemplated by the Financing Commitments, and (C) SigmaTEK and Purchaser may amend, supplement or modify the Financing Commitments in accordance with the “flex” provisions contained therein or amend, replace, supplement, modify or waive any provision under the terms Financing Commitment Documents or the definitive agreements relating to the Financing if such amendment, replacement, supplement, modification or waiver does not (x) decrease the aggregate amount of the Commitment LettersFinancing to an amount that would be less than an amount that would be required to consummate the purchase of the Purchased Equity on the Closing Date and make the other payments required to be made by Purchaser or any of its Affiliates hereunder on the Closing Date, including without limitationin each case, providing that is not otherwise compensated for by an increase in the Lenders with all information alternative financing permitted in accordance herewith or (y) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that they may request and entering into appropriate loan agreements would (I) reasonably be expected to prevent or other agreements in order materially delay the Closing, (II) make the timely funding of the Financing (or satisfaction of the conditions to obtain obtaining the Financing) materially less likely to occur or (III) materially and adversely impact the ability of SigmaTEK or Purchaser to enforce its rights against the other parties to the Financing Commitments, (ii) satisfy (or obtain waivers to) on a timely basis all conditions to funding in the Financing Commitments and such definitive agreements to be entered into pursuant thereto, (iii) negotiate and enter into definitive agreements with respect thereto on terms and conditions described in the Financing Commitments (subject to the exercise of any “flex” provisions contained therein) on or prior to the Closing Date and (iv) enforce its rights under the Financing Commitments. To the extent requested by Seller in writing from time to time, Purchaser shall keep Seller reasonably informed on a reasonably current basis of the status of its efforts to arrange the Financing (or Alternative Financing).
(b) In the event that any portion of the Financing becomes unavailable on the terms and conditions (iincluding any “flex” provisions) contemplated in the Financing Commitments for any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating reason other than due to the Commitment Letters or that breach by Seller of any of its representations, warranties or covenants contained herein or as a result of the conditions failure of a condition contained herein to be satisfied by it, Purchaser shall promptly notify Seller in writing and use its commercially reasonable efforts to arrange to obtain alternative financing from alternative sources on terms not materially less favorable taken as a whole (as determined in the reasonable discretion of Purchaser) to Purchaser than those contained in the Financing Commitments in an amount, when added with Purchaser’s existing cash on hand, sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event (the “Alternative Financing”). Without limiting the generality of the foregoing, Purchaser shall promptly notify Seller in writing (A) if Purchaser becomes aware of the existence of any material breach, material default, repudiation, cancellation or termination by any party to the Financing in Commitments, (B) of the Commitment Letters cannot be satisfied and receipt by Purchaser of any written notice or other written communication from any lender or other provider of Financing with respect to any actual repudiation, cancellation or termination by any party to the Financing Commitments or (C) Purchaser reasonably expects that it will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing (as such terms and conditions may be modified or adjusted in accordance with the terms thereof or on other terms no less favorable, in the aggregate, to Purchaser and its Affiliates, in each case subject to the limitations set forth in Section 7.7(a)). As soon as reasonably practicable, Purchaser shall provide any reason under information reasonably requested by Seller relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Upon request, Purchaser shall furnish to Seller a copy of any amendment, modification, waiver or consent of or relating to the Financing Commitments promptly upon execution thereof (provided, however, that any Financing Commitment LettersDocument may be redacted as to economic and “flex” terms, Acquiror shall use its commercially reasonable efforts to secure all or such portion none of which would reduce the amount of the Financing to be funded on terms no less favorable the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date). Upon any amendment, supplement or modification of the Financing Commitments and made in compliance with this Section 7.7(b) (excluding any amendment for the aggregate sole purpose of joining or adding additional commitment parties thereto), Purchaser shall provide a copy thereof to Acquiror than Seller (provided, however, that any Financing Commitment Document may be redacted as to economic and “flex” terms, none of which would reduce the terms contained in amount of the Commitment Letters. Acquiror Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date) and the term “Financing Commitments” as used herein shall immediately notify Holdings if mean the Financing Commitments as so amended, replaced, supplemented or modified, including any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersAlternative Financing.
Appears in 1 contract
Financing.
(a) Acquiror RAC will use its reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall comply with to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Financing in an amount required to satisfy the Financing Uses not later than the Effective Date on the terms of and conditions described in or contemplated by the Commitment Letters (or on other terms that, with respect to conditionality, are not less favorable to RAC than the terms and shall take conditions (including any “market flex” provisions) set forth in the Commitment Letters so long as such other terms would not have any result, event or consequence described in any of clauses (A) through (D) of Section 5.6(c)), including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letters in accordance with their respective terms (except for amendments, supplements, modifications, replacements or waivers not prohibited by this Agreement), (ii) on or prior to the Effective Date, negotiate and execute definitive agreements with respect to the Debt Financing required to satisfy the Financing Uses (which, with respect to the bridge facility documentation, will not be required until reasonably necessary in connection with the funding of the Debt Financing required to satisfy the Financing Uses (after taking into account any available Equity Financing and available cash of Great Canadian and its subsidiaries)) on the terms and conditions contained in the Debt Commitment Letter (or on other terms that, with respect to conditionality, are not less favorable to RAC than the terms and conditions contained in the Debt Commitment Letter (including any “market flex” provisions) so long as such other terms would not have any result, event or consequence described in clauses (A) through (D) of Section 5.6(c)), (iii) satisfy and comply with on a timely basis all actions conditions and covenants to the funding or investing of the Financing required on their part to satisfy the Financing Uses applicable to RAC in the Commitment Letters that are within its control that are to be satisfied by RAC, (iv) enforce RAC’s rights under the terms Equity Commitment Letter and (v) consummate the Financing in an amount required to satisfy the Financing Uses at or before the Effective Date. RAC will, upon the reasonable request of Great Canadian, keep Great Canadian informed on a reasonably current basis in reasonable detail of any material developments concerning the status of its efforts to arrange the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.6 will require, and in no event will the commercially reasonable efforts of RAC be deemed or construed to require, RAC to (i) seek the Equity Financing from any source other than a counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letters, including without limitation, providing Letter or (ii) pay any fees in excess of those contemplated by the Lenders with all information that they may request and entering into appropriate loan agreements Equity Commitment Letter or other agreements in order to obtain the Financing.Debt Commitment Letter.
(b) In the event that, notwithstanding the use of reasonable best efforts by RAC to satisfy its obligations under Section 5.6(a), any portion of the Debt Financing in an amount required to satisfy the Financing Uses (after taking into account any available Equity Financing) becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (or on other terms that, with respect to conditionality, are not less favorable to RAC than the terms and conditions (including any “market flex” provisions) set forth in the Commitment Letters so long as such other terms would not have any result, event or consequence described in any of clauses (A) through (D) of Section 5.6(c)), RAC will use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, notify Great Canadian of such unavailability and RAC will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain alternative financing on terms and conditions not less favorable to RAC than the terms and conditions (including any “market flex” provisions) contained in the Debt Commitment Letter in an amount sufficient, when added to the portion of the Debt Financing that is and remains available and taking into account any available Equity Financing, to satisfy the Financing Uses (“Alternative Financing”) and to obtain and provide Great Canadian with a copy of the new executed commitment letter that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”). For purposes of this Agreement (other than with respect to representations in this Agreement made by RAC that speak to the date of this Agreement) references to
(i) the “Financing” and “Debt Financing” will include the debt financing contemplated by the Debt Commitment Letter and any Lender shall notify Acquiror such Alternative Financing,
(ii) the “Commitment Letter” and the “Debt Commitment Letter” will include the Debt Commitment Letter to the extent not superseded by the Alternative Financing Commitment Letter and any such Alternative Financing Commitment Letter, (iii) the “Definitive Financing Agreements” will include the definitive documentation relating to the debt financing completed by the Debt Commitment Letter and any such Alternative Financing and (iv) the “Debt Financing Sources” will include the financial institutions and other entities party to any Alternative Financing Commitment Letter.
(c) RAC will not agree to any amendment, restatement, replacement, supplement, termination or Acquiror Sub that it is withdrawing other modification or terminating waiver of any provision under (i) the Equity Commitment Letters Letter (other than to increase the amount of Equity Financing available thereunder) without the prior written consent of Great Canadian or that (ii) the Debt Commitment Letter, without the prior written consent of Great Canadian, if such amendment, restatement, supplement, termination, modification or waiver would (A) impose new or additional conditions precedent to the funding of the Debt Financing in an amount required to satisfy the Financing Uses (after taking into account any available Equity Financing and available cash of Great Canadian and its subsidiaries) or would otherwise adversely change, amend, modify or expand any of the conditions precedent to the funding of the Debt Financing in an amount required to satisfy the Commitment Letters cannot Financing Uses (after taking into account any available Equity Financing and available cash of Great Canadian and its subsidiaries), (B) be satisfied reasonably expected to prevent or delay the availability of all or a portion of the Debt Financing necessary to satisfy the Financing Uses (after taking into account any available Equity Financing and will not be waived available cash of Great Canadian and its subsidiaries) or the consummation of the transactions contemplated by this Agreement, (C) reduce the aggregate amount of the Debt Financing below the amount necessary to satisfy the Financing Uses (after taking into account any available Equity Financing), or (iiD) Acquiror has agreed otherwise adversely affect the ability of RAC to enforce its rights under the Debt Commitment Letter; provided that RAC may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or other entities who had not executed the Debt Commitment Letter as of the date of this Agreement. As promptly as practicable following execution thereof (but in any amendment event within two Business Days), RAC will furnish to Great Canadian a correct and executed copy of any written amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the Commitment Letters and any fee letters entered into in connection with the Debt Financing (which may be redacted in a manner consistent with paragraph (d) of Schedule D). For purposes of this Agreement (other than with respect to representations in this Agreement made by RAC that establish additional conditions speak as of the date of this Agreement), references to (i) the Lenders' obligations “Equity Financing”, “Debt Financing” and “Financing” will include the financing contemplated by the Commitment Letters as permitted by this Section 5.6 to provide be amended, restated, replaced, supplemented or otherwise modified or waived and (ii) the “Debt Commitment Letter”, “Equity Commitment Letter” or “Commitment Letters” will include such document as permitted by this Section 5.6 to be amended, restated, replaced, supplemented or otherwise modified or waived, in each case from and after such amendment, restatement, replacement, supplement or other modification or waiver.
(d) Upon the request of Great Canadian, RAC will keep Great Canadian informed as promptly as practicable (and in any event within two Business Days) in reasonable detail of the status of their efforts to arrange the Financing. Without limiting the generality of the foregoing, RAC will give Great Canadian prompt written notice after RAC’s knowledge (i) of any default or breach (or any event that, with or without notice, lapse of time or both, would, or would reasonably be expected to, give rise to any default or breach) by any party under any of the Commitment Letters of which RAC becomes aware, (ii) of any termination of any of the Commitment Letters, (iii) of the receipt by RAC of any written notice or other written communication from the Debt Financing Sources or the Guarantors with respect to any (A) actual or potential default, breach, termination or repudiation of any Commitment Letter, or any material provision thereof, in each case by any party thereto, or (B) material dispute or disagreement between or among any parties to any Commitment Letter that would reasonably be expected to prevent or materially delay the Effective Date or make the funding of the Financing required to satisfy the Financing Uses on the Effective Date less likely to occur and (iv) of the occurrence of an event or otherwise makes it more difficult for Acquiror development that could reasonably be expected to adversely impact the ability of RAC to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable necessary to satisfy the Financing Uses (after taking into account any available Equity Financing).
(e) Great Canadian will provide and will use reasonable best efforts to have its Representatives (including counsel, financial advisors and auditors) and subsidiaries provide to RAC all cooperation reasonably requested by RAC in connection with the financings contemplated by the Debt Commitment Letter (including any offering or private placement of debt securities pursuant to Rule 144A under the U.S. Securities Act), including using reasonable best efforts to:
(i) as promptly as practicable (A) furnish RAC with the Required Financial Information and (B) inform RAC if the chief executive officer, chief financial officer, treasurer, controller or comparable officer of Great Canadian or any member of the audit committee of the Board will have knowledge of any facts as a result of which a restatement of any financial statements (or portion thereof) included in or including the Required Financial Information is probable or under consideration in order for such financial statements (or portion thereof) to comply with IFRS;
(ii) upon reasonable prior notice, participate (it being understood, if circumstances so require, that any such participation will be virtually) in a reasonable number of meetings, conference calls, presentations and roadshows with prospective lenders and investors, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies, otherwise cooperate with the marketing efforts for any reason under of the debt financing contemplated by the Debt Commitment LettersLetter and assist RAC in obtaining ratings in connection with the financing contemplated by the Debt Commitment Letter;
(iii) reasonably assist RAC and the Debt Financing Sources with the timely preparation of (A) materials for rating agency presentations and (B) any bank information memoranda, Acquiror shall lender presentations, investor presentations, offering documents, prospectuses, memoranda and similar documents for use in connection with the financing contemplated by the Debt Commitment Letter, including reviewing and commenting on RAC’s draft of a business description to be included in marketing materials or offering documents;
(iv) assist RAC with the preparation of pro forma financial information and pro forma financial statements to the extent required by SEC rules and regulations or necessary or reasonably requested by RAC or the Debt Financing Sources to be included in any marketing materials or offering documents or of the type required by the Debt Commitment Letter, it being agreed that Great Canadian and its commercially reasonable efforts subsidiaries will not be required to secure actually prepare or provide (1) pro forma financial statements, (2) information regarding any post-closing or pro forma cost savings, synergies, capitalization or ownership desired to be incorporated into any information used in connection with the Debt Financing, (3) description of all or such any portion of the Financing, including any “description of notes”, (4) risk factors relating to all or any component of the Financing on terms no less favorable or (5) any other information required by Rules 3-10 or 3-16 of Regulation S-X under the U.S. Securities Act, any Compensation Discussion and Analysis or other information required by Item 402 of Regulation S-K under the U.S. Securities Act, any other information customarily excluded from an offering memorandum for private placements of any non-convertible high-yield debt securities under Rule 144A promulgated under the U.S. Securities Act, or any other information customarily provided by an investment bank in the aggregate preparation of a confidential information memorandum (collectively, the “Excluded Information”);
(v) request and facilitate Great Canadian’s independent auditors to Acquiror than (A) provide, consistent with customary practice, (I) customary auditors consents (including consents of accountants for use of their reports in any materials relating to the terms contained Debt Financing) and reports and customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to Great Canadian and its subsidiaries and (II) reasonable assistance to RAC in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Letters.connection with RAC’s preparation of pro forma financial statements and information and
Appears in 1 contract
Samples: Arrangement Agreement
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters The Buyer shall, and shall take all actions required on their part under the terms of the Commitment Letterscause its Affiliates to, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order use its reasonable best efforts to obtain the Financing as promptly as practicable after the date of this Agreement taking into account the Marketing Period and, in any event, at or prior to the Closing, subject only to the conditions described in the Financing Commitments, including using its reasonable best efforts, taking into account the Marketing Period, to (i) comply with its obligations under the Financing Commitments, (ii) negotiate and enter into definitive agreements with respect to the Financing Commitments on terms and conditions (including flex provisions) no less favorable to the Buyer in any material respect than those contained in the Financing Commitments, (iii) satisfy on a timely basis all conditions contained in the Financing Commitments (including definitive agreements related thereto) to the extent such conditions are within the control of the Buyer, including the payment of any commitment, engagement or placement fees required as a condition to the Financing, (iv) consummate the Financing at or prior to the Closing Date (it being understood that it is not a condition to Closing under this Agreement, nor to the consummation of the Contemplated Transactions, for the Buyer to obtain the Financing or any alternative financing) and (v) subject to the satisfaction or waiver of the conditions set forth in the Debt Commitment Letter, enforce its rights under the Financing Commitments (including by using reasonable best efforts to cause the Lender, Note Purchaser and other Persons providing the Financing to fund the Financing contemplated by the Debt Commitment Letters; provided that the Buyer shall not be required to bring any litigation (or similar action) against such lenders, note purchasers or any Debt Financing Source). Upon request, the Buyer shall keep the Company informed on a regular basis and in reasonable detail of the status of its efforts to arrange the Financing (including providing the Company with copies of all material definitive agreements and other documents related to the Financing). Without limiting the generality of the foregoing, the Buyer shall give the Company prompt notice, and in any event, within two (2) Business Days, (x) of any breach or default by any party to any of the Financing Commitments or definitive agreements related to the Financing of which the Buyer becomes aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Financing source with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the Financing Commitments or other Contracts related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Financing Commitments or other Contracts related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (z) if at any time for any reason the Buyer believes in good faith that it will not be able to obtain all or any portion of the Financing in the amounts sufficient to provide the Buyer with the funds necessary for it to consummate the Contemplated Transactions and to perform its obligations under this Agreement, including payment by the Buyer of the Estimated Cash Purchase Price at the Closing and all other amounts payable by the Buyer at the Closing under this Agreement, and to pay all fees and expenses required to be paid at the Closing by the Buyer in connection with the consummation of Contemplated Transactions and the Financings. The Buyer shall not, without the prior written consent of the Company, amend, modify or supplement, or waive any of the provisions under, any of the Financing Commitments, if such amendment, modification, supplement or waiver (A) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing (or the cash proceeds available therefrom, including by increasing the amount of original issue discount fees to be deducted from proceeds thereof, unless the aggregate amount of the Financing is increased by a corresponding amount), (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing in a manner that would reasonably be expected to delay or prevent, or make less likely to occur, the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date, (C) impairs the availability of any Financing or the ability of the Buyer to enforce its rights against the other parties to the Financing Commitments or (D) adversely impact (i) the ability of the Buyer to consummate the Contemplated Transactions to be consummated at the Closing or (ii) the likelihood of the consummation of such transactions to be consummated at the Closing (in the case of each of the immediately preceding clauses (C) and (D) above, as compared to the Debt Commitment Letters as in effect on the date of this Agreement). For the avoidance of doubt, the Buyer may amend, supplement, modify or replace the Financing Commitments as in effect at the date hereof, (1) as expressly permitted by Section 7.9(b) below or (2) in any manner consistent with the immediately preceding sentence, including, (x) as required pursuant to the market flex provisions in the fee letter related to the Debt Commitment Letter, (y) to add or replace lenders, lead arrangers, bookrunners, syndication agents or other parties to the Debt Commitment Letter (for the avoidance of doubt, providing additional or replacement lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect to existing conditions shall not constitute the addition, expansion, amendment or modification of any condition of the Debt Financing), or (z) to add, replace or reallocate facilities, in each case, which would not reduce the amount of the Debt Financing available to the Buyer below that required to provide the Buyer with the funds necessary for it to consummate the Contemplated Transactions for which it is obligated at the Closing and to perform its obligations under this Agreement, including payment by the Buyer of the Estimated Cash Purchase Price at the Closing and all other amounts payable by the Buyer at the Closing under this Agreement, and to pay all fees and expenses required to be paid at the Closing by the Buyer in connection with the consummation of the Contemplated Transactions and the Financings or adversely affect the availability of the Debt Financing or include any additional conditions to funding of the Debt Financing. For purposes of this Section 7.9, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be amended, modified or replaced by this Section 7.9, and references to “Financing Commitments,” “Debt Commitment Letter” and “Equity Commitment Letter” shall include such applicable documents as permitted to be amended, modified or replaced by this Section 7.9.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under unavailable, the Commitment Letters, Acquiror Buyer shall notify the Company and use its commercially reasonable efforts to secure all arrange alternative financing from the same or such portion other sources of financing on terms and conditions (including the flex provisions) no less favorable to the Buyer than those contained in (or expressly permitted with respect to) the Financing Commitments and in an amount sufficient for the Buyer to perform its obligations under this Agreement (it being agreed that, if alternative financing is not reasonably available to the Buyer on such terms and conditions, the Buyer may arrange alternative financing on such other terms and conditions as the Buyer may in good xxxxx xxxx appropriate). Notwithstanding anything herein to the contrary, in no event shall the foregoing require the Buyer to, and the Buyer shall not be required to, (i) pay any fees materially in excess of those contemplated by the Financing Commitments as in effect on the date hereof or (ii) agree to any terms or conditions materially less favorable in the aggregate to Acquiror than the terms contained and conditions of the Financing Commitments and fee letters as in effect on the date hereof; provided, further, that in no event shall the Buyer be required (1) to amend or waive any of the terms or conditions hereof or (2) to consummate the Closing any earlier than as required by Section 3.2.
(c) The Company shall, and shall request its representatives and Subsidiaries to, at the Buyer’s sole cost and expense, use its and their commercially reasonable efforts to cooperate with the Buyer and its authorized representatives in connection with the arrangement of the Financing, including, (i) participating in a reasonable number of meetings, presentations, rating agency presentations and due diligence sessions with prospective financing sources and investors (including direct contact between senior management of the Business, on the one hand, and actual and potential financing sources, on the other hand) and cooperating reasonably with the customary marketing efforts of the Buyer and its financing sources and investors, in each case on reasonable advance notice and at reasonable locations, (ii) reasonably assisting with the preparation of customary materials for rating agency presentations, syndication documents and materials, including bank information memoranda (confidential and public), lender and investor presentations, marketing materials and similar documents required in connection with the Financing, including the execution and delivery of customary authorization letters in connection therewith, (iii) as promptly as reasonably practicable, furnishing the Buyer and the Debt Financing Sources with the Required Information and, as may be reasonably requested by the Buyer in connection with the Debt Financing, other customary information regarding the Business that is reasonably available to the Company, (iv) causing the Sold Companies to execute and deliver any customary definitive financing documentation and customary certificates, or other similar documents and instruments as may be reasonably requested by the Buyer, in each such case, as necessary and customary in connection with the consummation of Debt Financing, (v) causing the Sold Companies to execute and deliver any customary pledge and security documents and other documents as may be reasonably requested by the Buyer and otherwise necessary to facilitate the pledging of collateral required by any Financing (including, if applicable, cooperation in coordinating customary releases, including releases of related guarantees, liens and other security interests), (vi) assisting the Buyer in obtaining any corporate credit and family ratings from rating agencies, including assisting the Buyer in the Commitment Letterspreparation of customary materials for rating agency presentations solely with respect to information relating to the Business and the Sold Companies, and (vii) furnishing the Buyer and any Debt Financing Sources at least five (5) Business Days prior to the Closing Date, with all documentation and other information regarding the Company and its Subsidiaries that has been reasonably requested by the Debt Financing Sources at least ten (10) Business Days prior to the Closing Date under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001, as amended; provided, however, that (A) none of the Company (or any of its Subsidiaries) shall be required to become subject to any obligations or liabilities with respect to such agreements or documents, except for the Sold Companies following the Closing and (B) nothing shall obligate the Company (or any of its Subsidiaries) to provide any information that would violate any obligations of confidentiality or result in a violation of Law or loss of any privilege. Acquiror Any information provided to the Buyer pursuant to this Section 7.9(c) shall immediately notify Holdings if be subject to the Confidentiality Agreement. The Buyer shall, promptly upon request by the Company, reimburse the Company (and its Subsidiaries) for all reasonable, out-of-pocket costs incurred by any Lenders such Person in connection with such cooperation. The Buyer acknowledges and agrees that the Company and its Subsidiaries and their respective representatives shall notify Acquiror not have any responsibility for, or Acquiror Sub incur any liability to any Person under or in connection with, the arrangement or consummation of the Financing or any alternative financing that the Buyer may raise in connection with the Contemplated Transactions. The Buyer shall indemnify and hold harmless the Company and its Subsidiaries and their respective representatives from and against any and all Damages suffered or incurred by them in connection with the arrangement of the Financing or any alternative financing and any information utilized in connection therewith (other than, in each case, to the extent such Damages arise as a result of the Company’s, its Subsidiaries’ or its or their respective representatives’ gross negligence, willful misconduct or intentional misrepresentation). Notwithstanding anything to the contrary, the condition set forth in Section 8.1(b) of this Agreement, as it is amending applies to the Commitment LettersCompany’s obligations under this Section 7.9(c), shall be deemed satisfied unless the Debt Financing (or any alternative financing) has not been obtained primarily as a result of the Company’s Willful and Material Breach of its obligations under this Section 7.9. The Buyer acknowledges and agrees that, notwithstanding anything contained herein to the contrary, neither the Company nor any of its Subsidiaries shall be required to deliver any financial statements, including any balance sheet or income statement, in respect of the Business or otherwise, other than the Required Information. The Company and the Sellers hereby consent to use of their respective logos on customary marketing materials in connection with the syndication of the Debt Financing.
(d) The Company shall provide to the Buyer (i) the Audited Financial Statements and (ii) (A) unaudited statements of income for the Business for each fiscal quarter subsequent to July 1, 2016 that shall have ended at least 45 days prior to the Closing Date, (B) operating cash flows for the Business for each fiscal quarter subsequent to July 1, 2016 that shall have ended at least 45 days prior to the Closing, and (C) combined unaudited balance sheets for the Business for each fiscal quarter subsequent to July 1, 2016 that shall have ended at least 45 days prior to the Closing Date and (iii) any other Required Information.
Appears in 1 contract
Samples: Sale Agreement (Harris Corp /De/)
Financing. Acquiror shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done all things necessary to arrange the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using commercially reasonable efforts to (a) satisfy (or obtain waivers to), on a timely basis, all conditions to obtaining the Debt Financing applicable to Acquiror and Acquiror Sub shall comply with all terms of set forth in the Debt Commitment Letters and shall take all actions required on their part under the terms of the Commitment LettersLetter, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions) or on other terms in the aggregate not materially less favorable to Acquiror, and (c) in the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Debt Financing are satisfied, and subject to satisfaction or waiver of the conditions set forth herein, at the Closing consummate the Debt Financing. Acquiror shall give Seller prompt notice (i) of any breach of the Debt Commitment Letter in the Commitment Letters cannot be satisfied and will not be waived or any material respect by any Lender of which Acquiror becomes aware, (ii) if and when Acquiror has agreed to any amendment to the Commitment Letters becomes aware that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Debt Financing contemplated by any Debt Commitment Letter will not be available to consummate the Transaction, and (iii) of any termination of any Debt Commitment Letter. If any portion of the Debt Financing becomes unavailable for any reason under on the terms and conditions contemplated in the Debt Commitment LettersLetter, other than as a result of the failure of a condition contained herein to be satisfied by Seller or the Company, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing arrange and obtain alternative financing, including from alternative sources, on terms no not materially less favorable in the aggregate to Acquiror than the terms contained in of the Debt Commitment LettersLetter (“Alternative Financing”) as promptly as practicable following the occurrence of such event and the provisions of this Section 5.9 shall be applicable to the Alternative Financing. Acquiror shall immediately notify Holdings (1) comply in all material respects with the Debt Commitment Letter, (2) enforce its rights under the Debt Commitment Letter and (3) not permit any material amendment or modification to be made to, or any waiver of any provision or remedy, if any Lenders shall notify Acquiror such amendments, modifications or Acquiror Sub that it is amending waivers would impose new or additional conditions precedent to receipt of the Debt Financing or if such amendment would reasonably be expected to cause a material delay in the receipt of the Debt Financing under the Debt Commitment LettersLetter or the fee letter referred to in the Debt Commitment Letter, without the prior written consent of Seller.
Appears in 1 contract
Financing. (aA) Acquiror Parent and Acquiror Sub the Purchaser shall comply with all terms of the Commitment Letters and shall take use their commercially reasonable efforts to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing on their part under the terms of and conditions described in the Debt Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order using commercially reasonable efforts to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating maintain in effect the Debt Commitment Letters and negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions reflected in the Debt Commitment Letters or that any of on other terms reasonably acceptable to Parent and the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or Purchaser, (ii) Acquiror has agreed satisfy on a timely basis all material conditions applicable to any amendment Parent and the Purchaser in such definitive agreements that are within their control, (iii) consummate the Debt Financing at such time or from time to time as is necessary for Purchaser to satisfy its obligations under this Agreement, and (iv) enforce its rights under the Debt Commitment Letters; provided, however, that Parent or Purchaser shall have the right to substitute alternative financing for the Debt Commitment Letters with a different letter or a letter from alternative lenders so long as such substitute letter is subject to financing conditions that establish additional are at least as favorable to Parent and Purchaser as the financing conditions to set forth in the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination EventDebt Commitment Letters. In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letters for any reason under reason, Parent and the Commitment Letters, Acquiror Purchaser shall use its their commercially reasonable efforts to secure all or such portion of the Financing obtain alternative financing on terms no less favorable in the aggregate to Acquiror Parent and Purchaser than the Debt Financing from alternative sources ("Alternative Financing") as promptly as practicable following the occurrence of such event. Parent shall promptly notify the Company in writing of: (A) the occurrence or existence of any event, condition, fact or circumstance that could adversely impact the availability to Parent or Purchaser of the cash resources and/or financing sufficient to enable Purchaser to acquire the Company Shares pursuant to the Offer, and otherwise perform its obligations under this Agreement; (B) any amendment, withdrawal, rescission, breach, violation or non-satisfaction of any of the covenants, conditions or other terms contained in the Debt Commitment LettersLetters or any documents incorporated by reference therein; or (C) any allegation with respect to any of the matters described in clause "(B)" of this sentence. Acquiror No notification given to the Company pursuant to this Section 5.16(a) shall immediately notify Holdings limit or otherwise affect the covenants or obligations of Parent or Purchaser contained in A-47 this Section 5.16(a). For the avoidance of doubt, Parent's and the Purchaser's obligation to consummate the Offer, the Merger and the other transactions contemplated by this Agreement are not (and shall not be) subject to any financing condition.
(B) In the period between the date of this Agreement and the Effective Time, upon request of Parent, the Company shall, and shall use commercially reasonable efforts to cause its Subsidiaries, and its and their Affiliates and Representatives to, reasonably cooperate with Parent in connection with its financing of the transactions contemplated in this Agreement, including using commercially reasonable efforts to (i) participate in meetings and road shows, if any Lenders any; (ii) provide information reasonably requested by Parent relating to such financing; (iii) assist in the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent; and (iv) obtain the consent of, and customary comfort letters from, Ernst & Young, LLP (including by providing customary management letters and requesting legal letters to obtain such consent) if necessary or desirable for Parent's use of the Company's financial statements. Parent shall notify Acquiror promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket expenses incurred by the Company or Acquiror Sub that it is amending the Commitment Lettersits Affiliates or Representatives in connection with such cooperation.
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Innovations Inc)
Financing. Parent and Merger Sub acknowledge and agree that the Company and its Affiliates and its and their respective Representatives shall not (prior to the Effective Time) have any responsibility for, or incur any liability to any person under, any financing that Parent and Merger Sub may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 7.11 and that Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Affiliates and its 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 the Equity Financing and Debt Financing and any information utilized in connection therewith. Parent and Merger Sub shall use their respective reasonable best efforts to (i) arrange and consummate the financing on the terms and conditions described in the Commitment Letters (including the exercise of so-called “flex” provisions) as promptly as practicable, including using reasonable best efforts to (x) negotiate and enter into definitive agreements with respect thereto consistent with the terms and conditions contained in the Commitment Letters or on other terms no less favorable, in all material respects to Parent and Merger Sub, and (y) to satisfy on a timely basis all conditions applicable to Parent and Merger Sub in such definitive agreements that are to be satisfied by Parent or Merger Sub and (ii) comply with their obligations under the Commitment Letters. Without limiting the obligations of Parent and Merger Sub pursuant to the immediately preceding sentence, Parent shall prepare and deliver to the Debt Financing Sources on a timely basis taking into account the Marketing Period (1) the Pro Forma Financial Information, (2) all Debt Offering Documents and (3) all necessary materials to obtain the debt ratings contemplated by Section 3 of the Debt Commitment Letter. Each of Parent and Merger Sub shall provide the Company, upon reasonable request, with such information and documentation as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. In the event that all conditions applicable to the financing commitments have been satisfied, Parent shall use its reasonable best efforts to cause the lenders and the other Persons providing such financing to consummate the transactions contemplated hereby and by the Epicor Merger Agreement on the Closing Date (including by taking enforcement action to cause such lenders and other Persons providing such financing to fund such financing). In the event (x) any portion of the debt financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter and/or (y) Parent is required to pay the Scheduled Acquisition Cost Amount (or a portion thereof) pursuant to the terms of this Agreement, (A) Parent shall use its reasonable best efforts to arrange and to obtain alternative financing from the same or alternative sources on terms no less favorable to Parent than those in the Debt Commitment Letter that such alternative financing would replace (including flex provisions) (the “Alternative Financing”) as promptly as practicable following the occurrence of such event, (B) the term “Commitment Letter” in this Section 7.11 shall be deemed to include any new financing commitment entered into with respect to obtaining such alternative financing and (C) the obligations under this Section 7.11 shall apply equally to any such alternative financing (including any new financing commitment); provided, that Parent shall not be required to seek any Alternative Financing on or after the Outside Date and shall not be required to execute any new debt commitment letter or arrange for such alternative financing on terms and conditions that are less favorable (unless otherwise determined by Parent), in the aggregate, to Parent, Merger Sub or the Surviving Corporation than those included in the Debt Commitment Letter that they would replace. Parent shall promptly notify the Company of any breach that could adversely affect the timely availability of the financing to be provided by the Commitment Letters of which Parent or Merger Sub has become aware by any party to the Commitment Letters or any written proposal by any financing party named in a Commitment Letter to withdraw, repudiate, terminate or make a material change in the terms of (including the amount of financing contemplated by) such Commitment Letter. Neither Parent nor Merger Sub shall, without the prior written consent of the Company, consent to or enter into (a) Acquiror and Acquiror Sub shall comply any amendment, modification, or waiver of any material provision or remedy under, the Debt Commitment Letter (except any amendment, modification or waiver in connection with all Parent's requirement to fund the Scheduled Acquisition Cost Amount pursuant to the terms of this Agreement) if such amendment, modification, waiver or remedy (x) reduces the Commitment Letters and shall take all actions required on their part cash amount of the funding commitments under the terms Debt Commitment Letter (unless such reduction of the financing commitments under the Debt Commitment Letter is matched with a corresponding equivalent increase of the financing commitment under the Equity Commitment Letter), (y) significantly delays the consummation of the transactions contemplated by this Agreement, or (z) amends, supplements or otherwise modifies the conditions precedent set forth in the Debt Commitment Letter in any manner that is adverse to Parent or the Company or otherwise adversely affects the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement and/or the Epicor Merger Agreement, (b) any amendment, modification or waiver of any term of the Equity Commitment Letter (except any amendment that solely increases the amount of the equity financing thereunder without amending or modifying any other term of the Equity Commitment Letter) (actions prohibited by clauses (a) and (b), collectively, the “Restricted Commitment Letter Amendments”) or (c) termination of the Commitment Letters; provided, including without limitationhowever, providing Parent and Merger Sub may amend the Lenders Debt Commitment Letter (x) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that had not executed the Debt Commitment Letter as of the date hereof and (y) in connection with all information that they may request Parent's obligation (if any) to pay the Scheduled Acquisition Cost Amount pursuant to this Agreement. Parent shall, and entering into appropriate loan agreements or other agreements shall cause its Affiliates to, use reasonable best efforts to maintain the effectiveness of the Commitment Letters. For the avoidance of doubt, in order to obtain the Financing.
(b) In the event that (ix) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for financing contemplated by the Debt Commitment Letter has not been consummated, and (y) all conditions set forth in Article VIII hereof have been satisfied or waived (other than the conditions set forth in Sections 8.1(b) and 8.2(b) but subject to the satisfaction of such conditions) and the Closing is required to occur pursuant to Section 2.2, each of Parent and Merger Sub shall cause the proceeds of the bridge facility contemplated by the Debt Commitment Letter to be used to cause the Closing to occur. For the avoidance of doubt, nothing herein shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (i) seek equity financing from any reason under source other than those counterparty to, or in excess of that contemplated by the Equity Commitment LettersLetter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letter, Acquiror shall use its commercially reasonable efforts or agree to any “market flex” terms less favorable to Parent, Merger Sub or the Surviving Corporation than such corresponding market flex terms contained or contemplated by the Debt Commitment Letter (in either case, whether to secure all waiver of any conditions contained therein or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersotherwise).
Appears in 1 contract
Financing. Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause the Company Representatives to, provide all cooperation reasonably requested by Purchaser in connection with obtaining equity commitments from Persons that will either be investing in Purchaser or will be acquiring Purchased Stock from the Company pursuant to this Agreement (athe “Equity Commitments”), including (i) Acquiror participation in a reasonable number of meetings, presentations and Acquiror Sub due diligence sessions, (ii) assisting with the preparation of materials for offering documents, private placement memoranda and similar documents required in connection with obtaining the Additional Equity Commitments (collectively, “Offering Materials”) and (iii) providing any interim financial information provided to management of the Company and its Subsidiaries in the ordinary course of business. Purchaser and Badger Capital shall use their reasonable best efforts to cause the Persons who are or become party to Equity Commitments to comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements thereof in order to obtain consummate the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any purchase of the conditions Purchased Stock prior to the Financing date specified in Section 7.1(c) (including by taking reasonable enforcement action to cause such Persons providing such Equity Commitments to fund the amounts contemplated thereby in accordance with the terms thereof). Notwithstanding anything to the contrary in the Commitment Letters cannot foregoing, the Company acknowledges and understands that the Equity Commitments will be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment made subject to the Commitment Letters satisfaction of all conditions precedent to Purchaser’s obligations under this Agreement set forth in Section 6.1 and that establish additional Purchaser shall in no event be obligated to enforce the Equity Commitments if such conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersprecedent are not completely satisfied.
Appears in 1 contract
Samples: Stock Purchase Agreement (Anchor Bancorp Wisconsin Inc)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under Subject to the terms and conditions of the Commitment Lettersthis Agreement, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order Buyer shall use its reasonable best efforts to obtain the FinancingFinancing contemplated by the Commitment Letter, including taking, or causing to be taken, all actions and doing, or causing to be done, all things necessary, proper or advisable to obtain the Financing contemplated by the Commitment Letter. Buyer may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement, or otherwise replace or amend the Commitment Letter, in each case, so long as such action would not (A) reasonably be expected to delay or prevent the Closing, (B) expand on, or provide for additional, conditions precedent to the initial funding of the Financing or (C) reduce the aggregate amount of the Financing at the Closing below an amount sufficient (when taken together with Buyer’s other available funds) to enable Buyers to pay the Purchase Price and the maximum amount of the Contingent Payment.
(b) Buyer shall maintain in effect the Commitment Letter and negotiate definitive agreements with respect to the Financing on substantially the terms and conditions contained in the Commitment Letter. Upon the request of the Seller from time to time, Buyer shall keep the Seller informed on a reasonably current basis and in reasonable detail of the status of Buyer’s efforts to arrange the Financing. In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the all conditions to the Financing in the Commitment Letters cannot Letter have been satisfied or, upon funding will be satisfied and will not be waived or (ii) Acquiror has agreed satisfied, Buyer shall use its reasonable best efforts to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide cause the Financing or otherwise makes it more difficult for Acquiror Sources to obtain fund on the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination EventClosing Date the financing required to consummate the transactions contemplated by this Agreement. In the event that all or any a portion of the Financing becomes unavailable for any reason unavailable, Buyer shall use its reasonable best efforts to arrange replacement financing on terms not materially less favorable, taken as a whole, to Buyer than those under the Commitment LettersLetter from alternative sources as promptly as practicable in an amount sufficient to consummate the transactions contemplated by this Agreement (and in such case references in this Agreement to the Commitment Letter shall be deemed to refer also to the agreements under which such replacement commitments are provided, Acquiror references in this Agreement to the Financing shall use its commercially reasonable efforts be deemed to secure refer also to the financing contemplated thereby, and all obligations of Buyer pursuant to this Section 7.13 shall be applicable thereto to the same extent as with respect to the Commitment Letter and the Financing). For the purposes of this Agreement, references to the “Commitment Letter” shall include such documents as permitted or required by this Section 7.13 to be amended, modified or replaced, in each case from and after such portion amendment, modification or replacement and references to the “Financing” shall include any such modified or alternative debt financing.
(c) Buyer shall give the Seller prompt notice of any breach, default of, or actual withdrawal, repudiation or termination in writing by, any party to the Commitment Letter or of any condition not likely to be satisfied, in each case, of which Buyer becomes aware or any termination of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersLetter.
Appears in 1 contract
Financing. The Buyer shall promptly, after their execution, deliver to the Seller true, complete and correct copies of signed commitment letters and related term sheets received by the Buyer from debt and, if applicable, equity financing sources (aincluding equity financing sources (if any) Acquiror and Acquiror Sub for Holding). The Buyer shall comply with all terms promptly notify the Seller of the Commitment Letters and shall take all actions required on their part under the terms refusal of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions party to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations debt commitment letter to provide the Financing or otherwise makes it more difficult for Acquiror financing in accordance with each of the terms and conditions described therein. The Seller shall, and shall cause the Companies to, provide such assistance and cooperation as the Buyer and its Affiliates may reasonably request in connection with obtaining the debt financing described in the debt commitment letter, including providing reasonable access to obtain the Financing (unless Holdings has agreed Business and the Assets, reasonably cooperating with the Buyer and its Affiliates in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Eventpreparing definitive debt financing documents and reasonably cooperating with the Buyer in making closing deliveries required thereunder. In the event all or any portion furtherance of the Financing becomes unavailable foregoing, Seller shall, and shall cause the Companies to, assist and cooperate with the Buyer and its Affiliates in their obtaining landlord lien waivers, non-disturbance agreements and estoppel certificates required in connection with the debt financing described in the debt commitment letter (including promptly facilitating discussions with the relevant landlords for the Real Property). Notwithstanding anything to the contrary herein, neither the Seller nor any reason of its Affiliates (including the Companies) will be required to make any out of pocket expenditure in connection with their obligations under this Section 5.7 nor shall any provision of this Section 5.7 be interpreted to require that the Commitment Letters, Acquiror shall use its commercially reasonable efforts Seller postpone the Closing Date. The Parties acknowledge that nothing herein is intended to secure all or such portion imply that Buyer’s obtaining financing pursuant to the commitment letters is a condition to the obligation of the Financing Buyer to perform the Transactions contemplated to be performed on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersClosing Date.
Appears in 1 contract
Financing. (a) Acquiror The Buyer shall use its reasonable best efforts to cause the Financing contemplated by the Commitment Letter, subject to the terms and Acquiror Sub shall conditions set forth therein, to be available at Closing, including by using its best efforts to (i) maintain in effect the Commitment Letter and, if entered into prior to the Closing, the definitive documentation with respect to the Financing contemplated by the Commitment Letter; (ii) satisfy on a timely basis all conditions applicable to the Buyer in the Commitment Letter that are within its control and comply with all terms its obligations thereunder and not take or fail to take any action that would be reasonably expected to prevent or impede or delay the availability of the Commitment Letters Financing; and shall take all actions required on their part (iii) enforce its rights under the terms Commitment Letter in the event of a breach by the Financing source that impedes or delays the Closing, including by seeking specific performance of the Commitment Lettersparties thereunder if necessary, including without limitation, providing unless the Lenders with all information Buyer reasonably concludes that they may request and entering into appropriate loan agreements seeking specific performance is impracticable or other agreements in order not reasonably likely to obtain the Financing.
(b) succeed under such circumstances. In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the all conditions to the Financing have been satisfied, the Buyer shall use its best efforts to cause the lenders and the other Persons providing such Financing to fund such Financing on the Closing Date. Notwithstanding anything to the contrary herein, if the Financing in the amount set forth in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment Letter becomes unavailable to the Commitment Letters that establish additional Buyer on the terms and conditions to set forth therein, the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Buyer shall use its commercially reasonable best efforts to secure all or obtain such portion of funds to the Financing extent available on material terms and conditions no less favorable in the aggregate to Acquiror the Buyer than as set forth in the Commitment Letter (the “Alternate Financing”). For purposes of this Agreement, “reasonable best efforts” or any substantially similar undertakings shall not require Buyer to (i) pay (or agree to pay) more for the Financing or the Alternate Financing (whether in interest rate, fees or otherwise) than the terms contained set forth in the Commitment Letters. Acquiror shall immediately notify Holdings if Letter, or (ii) waive any Lenders shall notify Acquiror condition or Acquiror Sub that it is amending agree to any changes to the Commitment LettersLetter.
(b) The Seller shall provide such cooperation and assistance as the Buyer reasonably requests in connection with the arrangement of the Financing contemplated by the Commitment Letter or any Alternate Financing, including (to the extent that such activities do not unreasonably interfere with the business or operations of the Seller):
(i) participation by appropriate senior management of the Seller in a reasonable number of meetings, due diligence sessions, drafting sessions and sessions with rating agencies and prospective lenders;
(ii) assisting Buyer with the preparation of customary rating agency presentations, marketing materials and information memoranda (including the delivery of one or more customary representation and authorization letters) as may be required in connection with the Financing;
(iii) facilitating the pledging and mortgaging of collateral, including assisting with the preparation of security documents, other definitive financing documents, and other certificates or documents and back-up therefor as may be reasonably requested by the Financing sources provided that no obligation or agreement of the Seller under any agreement, document or pledge related to the Financing shall be operative until the Closing and no release or termination of any Lien shall be effective until the Closing and only in accordance with the applicable payoff documents;
(iv) furnishing Buyer, as promptly as practicable, with such financial and other pertinent information relating to the Seller or the Purchased Assets as may be reasonably required by the Financing sources, and using reasonable best efforts to obtain customary comfort letters and consents from independent public accountants (provided that the Seller shall not be required to prepare or furnish any financial statements other than the Financial Statements, and provided, further, that the Buyer shall be responsible for the preparation of pro forma financial statements);
(v) assisting in the negotiation of definitive documents for the Financing as may be reasonably requested by the Buyer, to become effective on the Closing;
(vi) delivering notices of prepayment within the time periods required by the relevant agreements governing the Seller’s indebtedness, to become effective only upon the Closing, and obtaining customary consents payoff letters, lien terminations and instruments of discharge to be delivered at and effective only on the Closing, to allow for the payoff, discharge and termination in full at the Closing of such indebtedness as is required to be repaid, discharged or terminated pursuant to the definitive documents for the Financing; and
(vii) promptly and in any event at least three (3) Business Days prior to the Closing Date, furnishing Buyer with all documentation and other information (to the extent reasonably requested by the Financing sources at least ten (10) Business Days prior to the Closing Date) that is required by regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(c) Nothing in this Section 6.13 shall require the Seller to (i) waive or amend any terms of this Agreement; (ii) take any action that could be expected to result in a breach of a Material Contract; (iii) take any action that would reasonably be expected to subject it to any actual liability or require it to pay or reimburse any fees or expenses for which it would not be entitled to reimbursement pursuant to Section 6.13(e) or is not otherwise indemnified by or on behalf of Buyer, or to give any indemnities that are effective prior to the Closing; or (iv) obtain approval of its board of directors or similar governing body for any resolutions or authorizations relating to the Financing.
(d) All non-public or other confidential information provided by Seller or any of its Representatives pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, however that Buyer shall be permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions that are or may become parties to the Financing or the Alternate Financing (and to their respective counsel and auditors) so long as such Persons obtain the prior written consent of the Seller prior to receiving any such information and (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are subject to other customary confidentiality undertakings reasonably satisfactory to the Seller (it being acknowledged and agreed that the notices and undertakings in a form customarily used in confidential information memoranda for senior credit facilities or mezzanine facilities are reasonably satisfactory to the Seller).
(e) Promptly upon request by the Seller, the Buyer shall reimburse the Seller (or pay in advance) for any reasonable and documented out-of-pocket costs and expenses (including outside attorneys’ fees) incurred by the Seller in connection with the cooperation of the Seller contemplated by this Section 6.13.
Appears in 1 contract
Financing. (aA) Acquiror Parent and Acquiror Sub the Purchaser shall comply with all terms of the Commitment Letters and shall take use their commercially reasonable efforts to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing on their part under the terms of and conditions described in the Debt Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order using commercially reasonable efforts to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating maintain in effect the Debt Commitment Letters and negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions reflected in the Debt Commitment Letters or that any of on other terms reasonably acceptable to Parent and the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or Purchaser, (ii) Acquiror has agreed satisfy on a timely basis all material conditions applicable to any amendment Parent and the Purchaser in such definitive agreements that are within their control, (iii) consummate the Debt Financing at such time or from time to time as is necessary for Purchaser to satisfy its obligations under this Agreement, and (iv) enforce its rights under the Debt Commitment Letters; provided, however, that Parent or Purchaser shall have the right to substitute alternative financing for the Debt Commitment Letters with a different letter or a letter from alternative lenders so long as such substitute letter is subject to financing conditions that establish additional are at least as favorable to Parent and Purchaser as the financing conditions to set forth in the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination EventDebt Commitment Letters. In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letters for any reason under reason, Parent and the Commitment Letters, Acquiror Purchaser shall use its their commercially reasonable efforts to secure all or such portion of the Financing obtain alternative financing on terms no less favorable in the aggregate to Acquiror Parent and Purchaser than the Debt Financing from alternative sources ("Alternative Financing") as promptly as practicable following the occurrence of such event. Parent shall promptly notify the Company in writing of: (A) the occurrence or existence of any event, condition, fact or circumstance that could adversely impact the availability to Parent or Purchaser of the cash resources and/or financing sufficient to enable Purchaser to acquire the Company Shares pursuant to the Offer, and otherwise perform its obligations under this Agreement; (B) any amendment, withdrawal, rescission, breach, violation or non-satisfaction of any of the covenants, conditions or other terms contained in the Debt Commitment LettersLetters or any documents incorporated by reference therein; or (C) any allegation with respect to any of the matters described in clause "(B)" of this sentence. Acquiror No notification given to the Company pursuant to this Section 5.16(a) shall immediately notify Holdings limit or otherwise affect the covenants or obligations of Parent or Purchaser contained in this Section 5.16(a). For the avoidance of doubt, Parent's and the Purchaser's obligation to consummate the Offer, the Merger and the other transactions contemplated by this Agreement are not (and shall not be) subject to any financing condition.
(B) In the period between the date of this Agreement and the Effective Time, upon request of Parent, the Company shall, and shall use commercially reasonable efforts to cause its Subsidiaries, and its and their Affiliates and Representatives to, 62 reasonably cooperate with Parent in connection with its financing of the transactions contemplated in this Agreement, including using commercially reasonable efforts to (i) participate in meetings and road shows, if any Lenders any; (ii) provide information reasonably requested by Parent relating to such financing; (iii) assist in the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent; and (iv) obtain the consent of, and customary comfort letters from, Ernst & Young, LLP (including by providing customary management letters and requesting legal letters to obtain such consent) if necessary or desirable for Parent's use of the Company's financial statements. Parent shall notify Acquiror promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket expenses incurred by the Company or Acquiror Sub that it is amending the Commitment Lettersits Affiliates or Representatives in connection with such cooperation.
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Innovations Inc)
Financing. (a) Acquiror Parent shall use, and Acquiror Sub shall comply cause its Affiliates to use, their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable to consummate the Financing or any Substitute Financing as promptly as possible following the date of this Agreement (and, in any event, no later than the Offer Closing), including (i) (A) maintaining in effect the Commitment Letters and complying with all of their respective obligations thereunder and (B) negotiating, entering into and delivering definitive agreements with respect to the Financing reflecting the terms contained in the Commitment Letters (or with other terms agreed by Parent and the Financing Parties, subject to the restrictions on amendments of the Commitment Letters set forth below), so that such agreements are in effect no later than the Offer Closing and shall take (ii) satisfying on a timely basis all actions required on their part under the terms of conditions to the Commitment Letters, including without limitation, providing Financing and the Lenders with all information definitive agreements related thereto that they may request are applicable to Parent and entering into appropriate loan agreements or other agreements in order to obtain the Financingits Affiliates.
(b) In the event that all conditions set forth in Section 7.01 have been satisfied or waived or, upon funding shall be satisfied or waived, Parent and its Affiliates shall cause the Persons providing the Debt Financing (the “Debt Financing Parties”) and the Equity Financing (the “Equity Financing Parties” and, together with the Debt Financing Parties, the “Financing Parties”) to fund on the Offer Closing Date the Financing, to the extent the conditions precedent to such Financing have been satisfied (other than any such conditions that by their nature can be satisfied only at the Closing) and the proceeds thereof are required to consummate the Offer, the Merger and the other transactions contemplated hereby, and shall enforce its rights under the Commitment Letters (including in the event of any breach or purported breach thereof). Parent shall not, and shall cause its Affiliates not to, take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the conditions contained in the Commitment Letters or in any definitive agreement related to the Financing. Parent shall not, and shall cause its Affiliates not to, object to the utilization of any “market flex” provisions by any Financing Party.
(c) Parent shall keep the Company reasonably informed on a current and timely basis of the status of Parent’s efforts to obtain the Financing and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to status, proposed closing date and material terms of the definitive documentation related to the Financing, providing copies of then current drafts of the financing agreements and other primary definitive documents and giving the Company prompt notice of any material change (adverse or otherwise) with respect to the Financing. Without limiting the foregoing, Parent shall notify the Company promptly (and in any event within one (1) Business Day) if at any time prior to the Closing Date:
(i) any Lender shall notify Acquiror Commitment Letter expires or Acquiror Sub that it is withdrawing terminated for any reason (or terminating if any Person attempts or purports to terminate or repudiate any Commitment Letter, whether or not such attempted or purported termination or repudiation is valid);
(ii) Parent obtains Knowledge of any breach or default or any threatened breach or default (or any event or circumstance that, with or without due notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any Commitment Letter or any definitive document related to the Financing of any provisions of the Commitment Letters or any definitive document related to the Financing;
(iii) Parent receives any communication (written or oral) from any Person with respect to any (A) actual, potential or threatened breach, default, termination or repudiation by any party to the Commitment Letters or any definitive document related to the Financing of any provisions of the Debt Letters or any definitive document related to the Financing or (B) dispute or disagreement between or among any parties to the Commitment Letters;
(iv) any Financing Party refuses to provide or expresses (orally or in writing) an intent to refuse to provide all or any portion of the Financing contemplated by the Commitment Letters on the terms set forth therein (or expresses (orally or in writing) that such Person does not intend to enter into all or any portion of definitive documentation related to the Financing or to consummate the transactions contemplated thereby); or
(v) there occurs any event or development that could reasonably be expected to adversely impact the ability of Parent to obtain all, or any portion of, the Financing contemplated by the Commitment Letters on the terms and conditions, in the manner or from the sources contemplated by any of the Commitment Letters or the definitive documents related to the Financing or if at any time for any other reason Parent no longer believes in good faith that it will be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Commitment Letters or the definitive documents related to the Financing.
(d) As soon as reasonably practicable (but in any event within two (2) Business Days after the date the Company delivers to Parent a written request therefor), Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in Sections 6.14(c)(i) through 6.14(c)(v).
(e) Parent may amend, modify, terminate, assign or agree to any waiver under the Commitment Letters without the prior written approval of the Company; provided, that Parent shall not, without Company’s prior written consent, permit any such amendment, modification, termination, assignment or waiver to be made to any provision of or remedy under the Commitment Letters which would (i) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount), (ii) impose new or additional conditions to the Financing or otherwise expand, amend or modify any of the conditions to the Financing in or (iii) otherwise expand, amend, modify or waive any provision of the Commitment Letters cannot in a manner that in any such case would reasonably be satisfied and will not be waived expected to (A) delay or make less likely the funding of the Financing (iior satisfaction of the conditions to the Financing) Acquiror has agreed on the Offer Closing Date, (B) adversely impact the ability of Parent to enforce its rights against the Financing Parties or any amendment other parties to the Commitment Letters that establish additional conditions or the definitive agreements with respect thereto or (C) adversely affect the ability of Parent to enforce its rights against the other parties to the Lenders' obligations to provide Commitment Letters or timely consummate the Financing or otherwise makes it more difficult for Acquiror to obtain Offer, the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination EventMerger and the other transactions contemplated hereby. In the event all that new commitment letters or fee letters are entered into in accordance with any portion amendment, replacement, supplement or other modification of the Financing becomes unavailable for any reason under Commitment Letters permitted pursuant to this Section 6.14(e), Parent shall promptly deliver to the Company a true, complete and accurate copy thereof (and in the case of the Fee Letter, redacted in a manner consistent with Section 5.06). For purposes of this Agreement, the terms “Commitment Letters” and “Fee Letter” shall include and mean such documents as amended, supplemented, modified, waived or replaced in compliance with this Section 6.14(e), and references to “Financing” shall include and mean the financing contemplated by the Commitment LettersLetters as so amended, Acquiror shall use its commercially reasonable efforts to secure all supplemented, modified, waived or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersreplaced, as applicable.
Appears in 1 contract
Samples: Merger Agreement (RPX Corp)
Financing. (a) Acquiror and Acquiror Sub Buyer shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order use reasonable best efforts to obtain the Financing.
(b) In Financing on the event that terms described in the Financing Commitments, including using reasonable best efforts (i) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions described therein or on other terms not materially less beneficial to Buyer and not reasonably likely to result in the Closing not occurring pursuant to Section 1.3(a) (but in no event including any Lender shall notify Acquiror or Acquiror Sub terms that it is withdrawing or terminating the Commitment Letters or that any of expand the conditions precedent to the Financing in the Commitment Letters cannot be satisfied and will not be waived or Financing), (ii) Acquiror has agreed to any amendment satisfy on a timely basis all conditions applicable to Buyer set forth in the Debt Commitment Letters that establish additional conditions Letter and the Investment Commitment Letter and (iii) to the Lenders' obligations to provide consummate the Financing or otherwise makes it more difficult for Acquiror at the Closing, including enforcing the obligations of the lenders and other Persons providing the Financing contemplated by the Financing Commitments to fund the Financing. Buyer shall keep the Company apprised of the status of, and any developments in, its efforts to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect including any such amendmentbreach by a party to the Financing Commitments) and shall deliver to the Company true, correct and complete copies of all definitive agreements for the Financing promptly when entered into (each a "Funding Termination Event"subject to the redaction of pricing information), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or that any portion of the Financing financing described in the Debt Commitment Letter becomes unavailable for any reason under on the terms and conditions set forth in the Debt Commitment LettersLetter, Acquiror Buyer shall promptly notify the Company, and Buyer shall use its commercially reasonable best efforts to secure all or obtain alternative debt financing as promptly as possible following such portion of the Financing event, including from alternative financing sources, on terms no not materially less favorable in the aggregate to Acquiror Buyer than the terms contained those in the Debt Commitment LettersLetter and not reasonably likely to result in the Closing not occurring pursuant to Section 1.3(a) (and in no event including any terms that expand the conditions precedent to the debt Financing in the Debt Commitment Letter) that will enable Buyer to consummate the transactions contemplated by this Agreement. Acquiror Buyer shall immediately notify Holdings if not agree to or permit any Lenders amendment, supplement or other modification that reduces the total amount of the Financing or imposes any additional condition precedent to the availability of the Financing contemplated by the Debt Commitment Letter in any material respect without the Company’s written consent. The Buyer shall notify Acquiror or Acquiror Sub that it is amending not, and shall use its reasonable best efforts to cause Investor not to, consent to the assignment of any of Credit Suisse Securities (USA) LLC’s commitments under the Debt Commitment LettersLetter without the prior written consent of the Company.
Appears in 1 contract
Financing. (a) Acquiror Purchaser shall use its best efforts to take, or cause to be taken, all actions and Acquiror Sub to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter on or prior to the Closing Date for the purpose of, among other things, funding the Purchase Price. Such actions shall comply include: (i) maintaining in full force and effect and in all material respects the Debt Commitment Letter in the form provided to Seller concurrently with the execution of this Agreement, (ii) satisfying on a timely basis all terms of the conditions precedent and covenants to the Debt Financing applicable to Purchaser that are to be *** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission. satisfied by Purchaser, (iii) negotiating, executing and delivering definitive documents (“Debt Financing Documents”) that reflect in all material respects the terms contained in the Debt Commitment Letters Letter (including, as necessary, agreeing to any requested changes to the commitments thereunder in accordance with any “flex” provisions contained in the Debt Commitment Letter or any related fee letter), in each case which terms shall not in any material respect expand on the conditions to the funding of the Debt Financing Proceeds at the Closing or reduce the aggregate amount of the Debt Financing Proceeds available to be funded on the Closing Date, (iv) drawing such amount of the Debt Financing Proceeds as is necessary to satisfy Purchaser’s obligations under this Agreement and shall take all actions required on their part (v) fully enforcing its rights under the terms of Debt Commitment Letter and the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements Debt Financing Documents in order to obtain consummate the Debt Financing at or prior to the Closing. Without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed), Purchaser shall not permit or consent to any amendment, supplement or modification to be made to the Debt Commitment Letter if such amendment, supplement or modification imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter, in a manner that would reasonably be expected to delay or prevent or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, provided that Purchaser may (1) amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities, (2) implement or exercise the “flex” provisions contained in one or more fee letters related to the Debt Financing and (3) reduce the Debt Financing on a dollar for dollar basis upon receipt of the proceeds of an offering of debt or equity securities (an “Equity Issuance”) on or after the date hereof. Purchaser acknowledges and agrees that its obligations to consummate the transactions contemplated by this Agreement are not conditioned or contingent upon receipt of the Debt Financing Proceeds and a failure of the Closing to occur because Purchaser has not received the Debt Financing Proceeds shall constitute a material breach of this Agreement by Purchaser. Purchaser shall keep Seller fully informed, in all reasonable detail, of the status of its efforts to arrange the Debt Financing and shall, from the date hereof until the Closing Date, promptly notify Seller of the receipt by Purchaser of any written notice or other written communication from any Debt Financing Source with respect to any actual, threatened or alleged material breach, default, termination or repudiation by any party to any Debt Commitment Letter or any Debt Financing Document or any material provision of the Debt Financing contemplated pursuant to the Debt Commitment Letter or the Debt Financing Documents, provided that in no event will Purchaser be under any obligation to disclose any information shared among Purchaser and its professional advisors in connection with matters contemplated by this sentence that is subject to attorney-client or similar legal privilege. Purchaser shall promptly provide Seller, upon reasonable request, with copies of any Debt Financing Documents and such other information and documentation regarding the Debt Financing as shall be reasonably necessary to allow Seller to monitor the progress of such financing activities. Upon request, Purchaser shall provide Seller with written updates concerning the status of any Equity Issuance, including whether DHX intends to proceed with an Equity Issuance to raise part of the Purchase Price.
(b) In the event of any notification or communication that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Debt Financing in the Commitment Letters cannot be satisfied and will not be waived available to Purchaser in accordance with the terms hereof, Purchaser shall use its best efforts to take, or (ii) Acquiror cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange for and obtain as promptly as practicable *** Confidential treatment has agreed to any amendment been requested for redacted portions of this exhibit. This copy omits the information subject to the Commitment Letters that establish additional conditions confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Lenders' obligations to provide Securities and Exchange Commission. following the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect occurrence of any such amendmentFinancing Failure Event alternative debt financing (the “Alternative Financing”) (each a "Funding Termination Event")on commercially reasonable terms, then Acquiror whether or not such terms are more or less favorable to Purchaser than the terms of the Debt Commitment Letter, in an amount sufficient to consummate the transactions contemplated hereby and perform all of their obligations hereunder, it being understood and agreed that if Purchaser proceeds with any Alternative Financing, Purchaser shall immediately notify Holdings of be subject to the same obligations with respect to such Funding Termination EventAlternative Financing as set forth in this Agreement with respect to the Debt Financing. In the event all that Alternative Financing is obtained, Purchaser shall promptly provide Seller with a copy of the new financing commitment that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”). If applicable, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing”, any reference to “Debt Commitment Letter” shall include the “Alternative Financing Commitment Letter” and any references to “Debt Financing Documents” shall include the definitive documentation relating to any such Alternative Financing.
(c) From the date hereof and ending at the earlier of (i) the Closing Date and (ii) termination of this Agreement pursuant to Section 9.1, Seller shall cooperate and cause its officers, employees and advisors, including legal and accounting, to provide to Purchaser, at Purchaser’s sole expense, such reasonable cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Purchaser; provided that Seller shall not be required to provide cooperation under this Section 6.10(c) that: (w) unreasonably interferes with the ongoing business of Seller or the Company; (x) causes any representation or warranty in this Agreement to be breached; (y) causes any closing condition set forth in Article VII to fail to be satisfied or otherwise causes the breach of this Agreement or any portion Contract to which Seller or the Company is a party; or (z) requires Seller or any of its directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document or instrument, including any Debt Financing Document, with respect to the Debt Financing that is not contingent upon the Closing or that would be effective prior to the Closing and the directors and managers of Seller shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, in each case which are effective prior to the Closing. In no event shall Seller be in breach of this Agreement because of the failure to deliver any financial or other information that is not currently readily available to Seller on the date hereof or is not otherwise prepared in the ordinary course of business of Seller at the time requested by Purchaser or for the failure to obtain review of any financial or other information by its accountants.
(d) In no event shall Seller be required to pay any commitment or similar fee or incur any Liability (including due to any act or omission by Seller or its respective agents, other than acts or omissions constituting gross negligence or willful misconduct) or expense in connection with assisting Purchaser in arranging the Debt Financing becomes unavailable or as a result of any information provided by Seller or any of its Affiliates or agents in connection therewith. Purchaser shall, from and after the Closing or promptly after the termination of this Agreement pursuant to Section 9.1, (i) promptly upon request by Seller reimburse Seller for all documented out-of-pocket costs incurred in good faith by Seller in connection with such cooperation and (ii) indemnify and hold harmless Seller, and its Affiliates and agents from and against any reason and all Liabilities, Losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing or providing any of the information utilized in connection therewith, except to the extent of any of such Persons’ gross negligence or willful misconduct. *** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.
(e) To the extent that this Section 6.10 requires Seller’s cooperation with respect to any of Purchaser’s obligations under the Debt Commitment LettersLetter or relating to the Debt Financing, Acquiror Seller shall use be deemed to have complied with this Section 6.10 for purposes of Article VII of this Agreement if Seller has provided Purchaser with the assistance required under this Section 6.10 with respect to the Debt Commitment Letter and the Debt Financing. Notwithstanding anything to the contrary, the condition set forth in Section 7.2(a), as it applies to Seller’s obligations under this Section 6.10, shall be deemed satisfied unless the Debt Financing has not been obtained primarily as a direct result of Seller’s breach of its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersobligations under this Section 6.10.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Iconix Brand Group, Inc.)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions Prior to the Financing in the Commitment Letters cannot be satisfied Offer Acceptance Time, each of Parent and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Purchaser shall use its commercially reasonable efforts to secure take, or cause to be taken, all actions and to do, or cause to be done, all things, in each case, within its control, necessary, proper or advisable to arrange the Debt Financing on the terms and conditions described in the Debt Commitment Letters (including the “flex” provisions) (provided that Parent or Purchaser may replace or amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement, or otherwise amend any terms or conditions of the Debt Commitment Letters so long as the terms thereof (x) would not reasonably be expected to make the funding of the Debt Financing less likely to occur or materially delay or prevent the Closing or (y) are not with respect to such portion of the Debt Financing that is necessary to consummate the Transactions including to pay the aggregate Offer Price and the Merger Consideration and the fees and expenses of Parent related to the Transactions, and conditionality less beneficial to the Company than those in the Debt Commitment Letters as in effect on the date of this Agreement), including using its commercially reasonable efforts (i) to maintain in effect the Debt Commitment Letters, (ii) to satisfy on a timely basis, to the extent within its control, all terms and conditions applicable to Parent to obtaining the Debt Financing set forth therein and (iii) to enter into definitive agreements in form and substance reasonably satisfactory to Parent with respect thereto on the terms and conditions not less favorable than those contemplated by the Debt Commitment Letters (including the “flex” provisions). In the event any portion of the Debt Financing becomes unavailable on substantially the terms and conditions contemplated in the Debt Commitment Letters (including the “flex “ provisions), and such portion of the Debt Financing is necessary to consummate the Transactions, including to pay the aggregate Offer Price and the Merger Consideration and the fees and expenses of Parent related to the Transactions, Parent shall as promptly as reasonably practicable notify the Company and shall use its commercially reasonable efforts to arrange to obtain alternative debt financing from alternative debt sources on financial terms no less favorable favorable, in the aggregate aggregate, to Acquiror Parent than the those terms contained set forth in the Debt Commitment Letters and upon other terms and conditions not materially less favorable, in the aggregate, than those in the Debt Commitment Letters, in an aggregate amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event, and in such event all references to “Debt Financing” shall be deemed to reference such alternative debt financing. Acquiror Parent shall immediately notify Holdings if deliver to the Company true and complete copies of all agreements pursuant to which any Lenders such alternative source shall notify Acquiror have committed to provide Parent with any portion of such alternative financing (except that the fees and other commercially sensitive matters specified in any fee letter may have been redacted, none of which redactions shall relate to the amount, conditionality, enforceability or Acquiror Sub termination of such alternative financing). The Company acknowledges and agrees that it is amending that the failure by Parent or Purchaser to obtain the Debt Financing following compliance with this Section 6.13 will not, in and of itself, be considered a breach of this Agreement for any purpose. Parent shall give the Company prompt notice upon having knowledge of any actual or potential material breach by any party to any of the Commitment Letters or any actual or potential termination of any of the Commitment Letters.
(b) Prior to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to cause each of their respective Representatives to, as applicable, provide all cooperation reasonably requested by Parent or Purchaser in connection with the Debt Financing or any permitted replacement, amended, modified or alternative financing for the transactions contemplated by this Agreement (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company), including using their respective commercially reasonable efforts to cause such Representatives (A) to be available on a customary basis to meet with prospective lenders, rating agencies and investors in presentations, meetings, road shows and due diligence sessions and reasonably cooperate with the marketing efforts of Parent and Purchaser and the Debt Financing Sources for any such Debt Financing, (B) to
Appears in 1 contract
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms Each of the Commitment Purchaser and the Guarantor shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Financing, including using its best efforts to (i) satisfy on a timely basis (or obtain a waiver of) all conditions and covenants applicable to the Purchaser, the Guarantor or its Affiliates, as the case may be, to obtaining the Financing required for each Closing at or prior to such Closing as set forth therein, (ii) negotiate, execute and deliver (or cause its Affiliates to execute and deliver) definitive agreements with respect to such Financing on the terms and conditions contemplated by the Debt Financing Letters (and provide copies thereof to the Seller), (iii) fully pay any and all commitment fees, origination fees or other fees required by the Debt Financing Letters and shall take all actions required on their part under the terms (iv) upon satisfaction of the Commitment conditions set forth in the Debt Financing Letters, including without limitation, providing consummate the Lenders with all information that they may request and entering into appropriate loan agreements Financing necessary for each Closing at or other agreements in order prior to obtain the Financingsuch Closing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Letters, the Purchaser shall promptly notify the Seller and each of the Purchaser and the Guarantor shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain alternative financing from alternative sources on (i) terms and conditions not materially less favorable to the Purchaser than the Debt Financing Letters, (ii) with conditions to the funding of the Financing not materially less favorable to the interests of the Seller than those included in the Debt Financing Letters and (z) in an amount sufficient to consummate the transactions contemplated hereby, including the payment of the Purchase Price, the amounts to be paid pursuant to Section 8.2 (if any) and all related fees and expenses promptly following the occurrence of such event, and in any event prior to or on the Initial Closing Date.
(c) The Purchaser and the Guarantor shall keep the Seller reasonably informed and in reasonable detail with respect to all material developments concerning the Financing, including the alternative financing. Without limiting the generality of the foregoing, the Purchaser and the Guarantor shall promptly (and, in any event, within two (2) Business Days) notify the Seller in writing (i) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both could reasonably be expected to give rise to any material breach or default) by any party to the Debt Financing Letters or the definitive agreements with respect thereto, (ii) of the receipt by the Purchaser or any of its Affiliates or their respective employees, agents or representatives of any notice or other communication from any Person with respect to any (A) actual or potential material breach, default, termination or repudiation by any party to the Debt Financing Letters or any definitive agreement related thereto or any provision of the Financing contemplated pursuant to the Debt Financing Letters or any definitive agreement related thereto (including any proposal by any lender named in the Debt Financing Letters or any definitive agreement related thereto to withdraw, terminate or make a material change in the terms of (including the amount of financing contemplated by) the Debt Financing Letters) or (B) material dispute or disagreement between or among any parties to Debt Financing Letters or any definitive agreement related thereto, and (iii) if for any reason under the Commitment LettersPurchaser believes in good faith that (A) there is (or there is reasonably likely to be) a dispute or disagreement between or among any parties to the Debt Financing Letters or any definitive agreement related thereto or (B) there is a material possibility that it will not be able to obtain all or any portion of the financing contemplated in the Debt Financing Letters on the terms, Acquiror in the manner or from the sources contemplated by the Debt Financing Letters or the definitive agreements related thereto. Each of the Purchaser and the Guarantor shall use its commercially reasonable best efforts to secure cause the Financing Sources providing the Financing to fund on the Closing Date the Financing required to consummate the Closing and the other transactions contemplated by this Agreement if all conditions set forth in the Debt Financing Letters have been satisfied or waived (other than those conditions that by their nature are to be satisfied at Closing, but subject to the fulfillment or waiver of those conditions), including by taking enforcement action to cause such portion Financing Sources providing the Financing to comply with their obligations under the Debt Financing Letters and, subject to the terms and conditions of the Debt Financing Letters, to fund such Financing. References in this Agreement to “Financing” shall include the financing contemplated by the Debt Financing Letters as permitted by this Section 6.4 to be amended, modified or replaced (including, replacement with alternative financing and alternative financing letters pursuant to this Section 6.4) and references to “Debt Financing Letters” shall include such documents as permitted by this Section 6.4 to be amended, modified or replaced (including replacement with alternative financing letters pursuant to this Section 6.4), in each case from and after such amendment, modification or replacement.
(d) Prior to Closing, the Seller shall use its reasonable best efforts to provide to the Purchaser, and shall use its reasonable best efforts to cause its employees, advisors and representatives to provide to the Purchaser, all cooperation that is reasonably requested by the Purchaser in connection with the Financing, including: (i) participating in a reasonable number of meetings, due diligence sessions and sessions with prospective Financing Sources in connection with the Financing, (ii) assisting with the preparation of materials for bank information memoranda and similar documents required in connection with the Financing, and (iii) using reasonable best efforts to obtain accountants’ comfort letters, legal opinions, surveys and title insurance at the expense of and as reasonably requested by the Purchaser on behalf of the Financing on terms no less favorable Sources; provided, however, that nothing herein shall require such cooperation either to support any bond offering or to the extent it would interfere unreasonably with the Business or operations of the Seller and its Affiliates; and provided, further, that the Seller, its Affiliates and its and their respective officers, directors or employees shall not be required to authorize, execute, deliver or perform under any agreement with respect to the Financing that is not contingent upon the Closing for the Facility or the related Purchased Assets or that would be effective prior to or simultaneous with the Closing for such Facility, and then only with respect to such Facility or the related Purchased Assets.
(e) None of the Seller, its Affiliates and its and their employees, agents or representatives shall be required to take any action that would subject such Person to actual or potential liability, to bear any cost or expense or to pay any commitment, origination or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the aggregate Financing or their performance of their respective obligations under this Section 6.4 and any information utilized in connection therewith. The Purchaser shall indemnify and hold harmless the Seller, its Affiliates and its and their employees, agents and representatives from and against any and all Losses suffered or incurred by them in connection with the arrangement of the Financing and the performance of their respective obligations under this Section 6.4 or any information utilized in connection therewith. The Purchaser shall, promptly upon request of the Seller, advance or reimburse (as requested) the Seller and its Affiliates for all out-of-pocket costs to Acquiror than be incurred or that have been incurred by the terms contained Seller and its Affiliates (including those of its and their employees, accountants, consultants, legal counsel, agents and other representatives) in connection with their performance of this Section 6.4 or otherwise to support or cooperate with the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment LettersFinancing.
Appears in 1 contract
Financing. Purchaser shall use 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 arrange and obtain the Financing on the terms and conditions described in the Commitment Letter (including any “flex” provisions contemplated by the fee letter associated with the Commitment Letter), including using Commercially Reasonable Efforts to, as promptly as possible, (a) Acquiror and Acquiror Sub shall comply with all terms satisfy, or cause to be satisfied, on a timely basis (taking into account the expected timing of the Commitment Letters and shall take Marketing Period) all actions required on their part under the terms of conditions applicable to Purchaser to funding in the Commitment LettersLetter, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In negotiate and enter into definitive agreements with respect thereto on the event terms and conditions (including any “flex” provisions contemplated by the fee letter associated with the Commitment Letter) contemplated by the Commitment Letter (the “Debt Documents”) or on other terms that are no less favorable, when taken as a whole, to the Purchaser than those contained in the Commitment Letter (including any “flex” provisions contemplated by the fee letter associated with the Commitment Letter), (c) comply with its obligations under the Commitment Letter to the extent the failure to comply with such obligations could reasonably be expected to adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing at Closing and (d) consummate the Financing at or prior to Closing. Purchaser shall give Seller prompt written notice (i) of any Lender shall notify Acquiror breach or Acquiror Sub default by any party to any Commitment Letter or other Debt Document, if applicable, of which Purchaser becomes aware, (ii) if and when Purchaser becomes aware that it is withdrawing or terminating the Commitment Letters or reasonably likely that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and it will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror able to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable contemplated by any Commitment Letter, (iii) of the receipt of any written notice or other written communication, in each case, from a Financing Source, alleging (A) any actual or potential breach, default, termination or repudiation by any party to any Commitment Letter or other Debt Document, if applicable, or (B) material dispute or disagreement between or among any parties to any Commitment Letter or other Debt Document, if applicable, (but excluding, for the avoidance of doubt, any reason under ordinary course negotiations with respect to the Commitment Lettersterms of the Financing or Debt Documents) with respect to the obligation to fund the Financing, Acquiror shall use its commercially reasonable efforts the timing of the funding of the Financing or the amount of the Financing to secure all or such be funded at Closing. If any portion of the Financing becomes unavailable on terms no less favorable in the aggregate to Acquiror than the terms contained and conditions contemplated in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending Letter (after taking into account “flex” provisions contemplated by the fee letter associated with the Commitment LettersLetter), Purchaser shall use Commercially Reasonable Efforts to arrange to obtain in replacement thereof alternative financing, including from alternative sources, on terms and conditions (after taking into account any “flex” provisions applicable to such Alternative Financing (as defined below)), taken as a whole, not materially less favorable to Purchaser than the Financing contemplated by the applicable Commitment Letter (after taking into account any “flex” provisions contemplated by the fee letter associated with the Commitment Letter) in an amount sufficient, when added to the portion of the Financing that is available to pay the Financing Purposes (“Alternative Financing”) as promptly as practicable following the occurrence of such event. The provisions of this Section 6.23 shall be applicable to the Alternative Financing, and, for the purposes of this Agreement, all references to the Financing in this Agreement shall be deemed to include such Alternative Financing and all references to the Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing, in each case, other than references to the Financing or the Commitment Letter contained in (w) representations and warranties made in this Agreement as of the date hereof or (x) the last two sentences of this Section 6.23. Notwithstanding the foregoing, in no event shall Purchaser be required pursuant to this Agreement to agree to pay to the lenders providing the Financing any additional fees or to increase any interest rates applicable to the Financing, except as expressly required pursuant to the Commitment Letter or in the associated fee letter referenced therein or related thereto and Purchaser shall not be required to consummate the financing until the final day of the Marketing Period. Purchaser shall not permit, without the prior written consent of the Seller, any amendment or modification to be made to, or any termination, rescission or withdrawal of, or any waiver of any provision or remedy under, the Commitment Letter that could reasonably be expected to (y) reduce the aggregate amount of the Financing under the Commitment Letter (including by changing the amount of fees to be paid or original issue discount thereof (except as set forth in any “flex” provisions contemplated by the fee letter associated with the Commitment Letter)), or (z) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Financing in a manner that could reasonably be expected to (I) delay or prevent the Closing Date or (II) make the funding of any portion of the Financing (or satisfaction of any condition to obtaining any portion of the Financing) less likely to occur (it being understood and agreed that, in any event, the Purchaser 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). Notwithstanding anything to the contrary in this Agreement, compliance by Purchaser with this Section 6.23 shall not relieve Purchaser of its obligation to consummate the transactions contemplated by this Agreement, whether or not the Financing or Alternative Financing is available.
Appears in 1 contract
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information It is understood that they may request and entering into appropriate loan agreements or other agreements Xxxxxxxx must obtain financing satisfactory to Landlord in order to obtain make the Financing.
(b) improvements required hereunder. In the event that Landlord shall be unable to obtain said financing and so long as the Commencement Date has not occurred, Landlord shall have the right and option at any time prior to one year after the date hereof to cancel this Lease. If any lending institution with which Xxxxxxxx has negotiated or may negotiate interim or long term financing for the shopping center, or any part thereof, does not approve the credit rating of Tenant, or if such lending institution shall require a change or changes in this Lease, and if within fifteen (15) days after notice from Landlord (i) Tenant fails or refuses to supply or execute guaranties which are required by any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived such lending institution, or (ii) Acquiror has agreed Tenant fails or refuses to execute with Landlord the amendment or amendments to this Lease accomplishing the change(s) that are required by any such lending institution, Landlord shall have the right to cancel this Lease at any time prior to the Commencement Date. Notwithstanding anything herein to the contrary, Tenant shall not be required to agree, and Landlord shall not have any right of cancellation for Tenant's refusal to agree, to any amendment modifications to the Commitment Letters that establish additional conditions provisions of this Lease relating to the Lenders' obligations amount of minimum rent and/or percentage rent, the size and/or location of the Demised Premises, the Lease Term, or a reduction of the improvements to provide be made by the Financing or otherwise makes it more difficult for Acquiror Landlord to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings Demised Premises prior to tender of such Funding Termination Eventpossession. In the event all or of cancellation by Landlord, in accordance with any portion of the Financing becomes unavailable for any reason under the Commitment Lettersprovisions in this Section 12.7, Acquiror this Lease shall use its commercially reasonable efforts to secure all or such portion be and become null and void and both parties shall automatically be released as of the Financing on terms no less favorable in date of the aggregate to Acquiror than Landlord's cancellation notice from any and all liabilities or obligations under this Lease except Landlord shall return the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings security deposit, if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersany, made by Tenant.
Appears in 1 contract
Samples: Shopping Center Lease Agreement
Financing. (a) Acquiror Parent and Acquiror Sub the Purchaser shall comply with all terms of the Commitment Letters and shall take use their commercially reasonable efforts to take, or cause to be taken, all actions required and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing on their part under the terms of and conditions described in the Debt Commitment Letters, including without limitationusing commercially reasonable efforts to (i) maintain in effect the Debt Commitment Letters and negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions reflected in the Debt Commitment Letters or on other terms reasonably acceptable to Parent and the Purchaser, providing (ii) satisfy on a timely basis all material conditions applicable to Parent and the Lenders Purchaser in such definitive agreements that are within their control, (iii) consummate the Debt Financing at such time or from time to time as is necessary for Purchaser to satisfy its obligations under this Agreement, and (iv) enforce its rights under the Debt Commitment Letters; provided, however, that Parent or Purchaser shall have the right to substitute alternative financing for the Debt Commitment Letters with all information a different letter or a letter from alternative lenders so long as such substitute letter is subject to financing conditions that they may request are at least as favorable to Parent and entering into appropriate loan agreements Purchaser as the financing conditions set forth in the Debt Commitment Letters. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letters for any reason, Parent and the Purchaser shall use their commercially reasonable efforts to obtain alternative financing on terms no less favorable to Parent and Purchaser than the Debt Financing from alternative sources (“Alternative Financing”) as promptly as practicable following the occurrence of such event. Parent shall promptly notify the Company in writing of: (A) the occurrence or existence of any event, condition, fact or circumstance that could adversely impact the availability to Parent or Purchaser of the cash resources and/or financing sufficient to enable Purchaser to acquire the Company Shares pursuant to the Offer, and otherwise perform its obligations under this Agreement; (B) any amendment, withdrawal, rescission, breach, violation or non-satisfaction of any of the covenants, conditions or other agreements terms contained in order the Debt Commitment Letters or any documents incorporated by reference therein; or (C) any allegation with respect to obtain any of the Financingmatters described in clause “(B)” of this sentence. No notification given to the Company pursuant to this Section 5.16(a) shall limit or otherwise affect the covenants or obligations of Parent or Purchaser contained in this Section 5.16(a). For the avoidance of doubt, Parent’s and the Purchaser’s obligation to consummate the Offer, the Merger and the other transactions contemplated by this Agreement are not (and shall not be) subject to any financing condition.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating period between the Commitment Letters or that any date of this Agreement and the conditions to Effective Time, upon request of Parent, the Financing in the Commitment Letters cannot be satisfied Company shall, and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion cause its Subsidiaries, and its and their Affiliates and Representatives to, reasonably cooperate with Parent in connection with its financing of the Financing on terms no less favorable transactions contemplated in this Agreement, including using commercially reasonable efforts to (i) participate in meetings and road shows, if any; (ii) provide information reasonably requested by Parent relating to such financing; (iii) assist in the aggregate preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent; and (iv) obtain the consent of, and customary comfort letters from, Ernst & Young, LLP (including by providing customary management letters and requesting legal letters to Acquiror than obtain such consent) if necessary or desirable for Parent’s use of the terms contained Company’s financial statements. Parent shall promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket expenses incurred by the Company or its Affiliates or Representatives in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersconnection with such cooperation.
Appears in 1 contract
Samples: Merger Agreement (Biosite Inc)
Financing. The Buyer shall, at the Buyer’s expense, use its commercially reasonable efforts to (ai) Acquiror fully satisfy in all respects, on a timely basis, all terms, conditions, representations and Acquiror Sub shall comply with all terms of warranties set forth in the Commitment Letters and shall take all actions required on their part (ii) enforce its rights under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters such that the Financing shall be consummated as soon as practicable after the satisfaction or that any waiver of the conditions to the Financing set forth in the Commitment Letters cannot be satisfied Sections 7.1 and will not be waived or 7.2 hereof (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"other than Section 7.2(n), then Acquiror shall immediately notify Holdings of such Funding Termination Event). In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror The Buyer shall use its commercially reasonable efforts to secure all or such portion of enter into definitive agreements with respect to the Financing financings contemplated by the Commitment Letters on terms and conditions no less favorable in to the aggregate to Acquiror Buyer than the terms contained Commitment Letters as promptly as practicable but in any event on or prior to the Closing. The Buyer will furnish true, correct and complete copies of such executed definitive agreements to the Company promptly upon request by the Company. At the Company’s request, the Buyer shall keep the Company informed with respect to all material activity concerning the status of the financings contemplated by the Commitment LettersLetters and shall give the Company prompt notice of any material adverse change with respect to such Financings. Acquiror Without limiting the foregoing, the Buyer agrees to promptly notify the Company if at any time prior to the Closing Date (i) any Commitment Letter shall immediately notify Holdings if expire or be terminated for any Lenders reason; or (ii) any financing source that is a party to any Commitment Letter notifies the Buyer that such source no longer intends to either provide or underwrite financing to the Buyer on the material terms set forth therein. Other than in connection with this Agreement, the Buyer shall notify Acquiror not, and shall cause Buyer’s Affiliates not to, without the prior written consent of the Company, take any action or Acquiror Sub enter into any transaction, including any merger, acquisition, joint venture, disposition (including the disposition of any capital stock of any Buyer Subsidiary), lease, contract or debt or equity financing, that it is amending would reasonably be expected to materially impair, delay or prevent the Buyer’s obtaining of the financing contemplated by any Commitment Letter. The Buyer shall not amend or alter, or agree to amend or alter the Commitment LettersLetters in any manner that would materially impair or delay or prevent the Transactions without the prior written consent of the Company. If any Commitment Letter shall be withdrawn or rescinded, the Buyer shall use its commercially reasonable efforts until July 31, 2007), to (i) obtain, and, if obtained, will provide the Company with a copy of, a new financing commitment that provides for, on such terms and conditions not materially less favorable to the Buyer than the Commitment Letters and on such terms and conditions which will not impair, delay or impede the consummation of the Merger, at least the same amount of financing as contemplated by such Commitment Letter as originally issued; (ii) enter into definitive agreements with respect to such new financing; and (iii) obtain funds under such agreements to the extent necessary to consummate the Transactions.
Appears in 1 contract
Financing. (a) Acquiror Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions, and Acquiror Sub do, or cause to be done, all things necessary, proper or advisable to obtain funds in an amount sufficient to fund the Financing Amounts on the terms and conditions contained in the Debt Commitment Letter on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Financing on the terms and conditions described in the Debt Commitment Letter and the Equity Commitment Letter, as applicable, as promptly as possible but in any event on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof, including by (i) maintaining in effect the Equity Commitment Letter and the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements and complying with its obligations thereunder. Purchaser shall comply with all terms its obligations, and enforce its rights, under the Debt Commitment Letter and Definitive Agreements in a timely and diligent manner. Without limiting the generality of the foregoing, in the event that all conditions contained in the Debt Commitment Letters and shall take all actions required on their part under Letter or the terms Definitive Agreements (other than the consummation of the Commitment LettersSale and those conditions the failure of which to be satisfied is attributable to a breach by Purchaser of its representations, including without limitationwarranties, providing covenants or agreements contained in this Agreement, and other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied, Purchaser shall use reasonable best efforts to cause the Lenders and Equity Investors to comply with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financingtheir respective obligations thereunder.
(b) In Purchaser shall not without the event that prior written consent of Seller: (iA) permit any Lender shall notify Acquiror amendment or Acquiror Sub that it is withdrawing modification to, or terminating any waiver of any provision or remedy under, the Debt Commitment Letters Letter or that the Definitive Agreements if such amendment, modification, waiver or remedy (1) adds new (or adversely modifies any of the existing) conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings consummation of such Funding Termination Event. In the event all or any portion of the Financing, (2) reduces the amount of the Debt Financing or the Equity Financing, (3) adversely affects the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Purchaser to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof or (4) could otherwise reasonably be expected to prevent, impede or delay the consummation of the Sale and the other transactions contemplated by this Agreement; or (B) terminate the Debt Commitment Letter or any Definitive Agreement. Purchaser shall promptly deliver to Seller copies of any amendment, modification, waiver or replacement of the Debt Commitment Letter or any Definitive Agreement.
(c) In the event that any portion of the Debt Financing becomes unavailable for any unavailable, regardless of the reason under the Commitment Letterstherefor, Acquiror shall Purchaser will, (A) use its commercially reasonable efforts to secure all or such arrange and obtain alternative debt financing (in an amount sufficient and to the extent necessary, when taken together with the available portion of the Financing, to consummate the transactions contemplated by this Agreement and to pay the Financing on terms no less favorable Amounts) from the same or other sources and which do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions set forth in the aggregate Debt Commitment Letter and (B) promptly notify Seller of such unavailability and the reason therefor. For purposes of this Agreement, the term “Debt Commitment Letter” shall be deemed to Acquiror than include any commitment letter (or similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Debt Commitment Letter remaining in effect at the terms contained time in question) and the term “Debt Financing” shall be deemed to include any alternative debt financing obtained in compliance herewith. Purchaser shall provide Seller with prompt oral and written notice of any actual or threatened breach, default, termination or repudiation by any party to the Debt Commitment LettersLetter or Equity Commitment Letter or any Definitive Agreement and a copy of any written notice or other written communication from any Lender, Equity Investor or other financing source with respect to any breach, default, termination or repudiation by any party to the Debt Commitment Letter or Equity Commitment Letter or any Definitive Agreement of any provision thereof. Acquiror Purchaser shall immediately notify Holdings if any Lenders inform Seller in reasonable detail on a current basis of the status of its efforts to consummate the Financing. The foregoing notwithstanding, compliance by Purchaser with this Section 5.15 shall notify Acquiror not relieve Purchaser of its obligations to consummate the transactions contemplated by this Agreement whether or Acquiror Sub that it not the Financing is amending the Commitment Lettersavailable.
Appears in 1 contract
Financing. (a) Acquiror Prior to the Closing, the Partnership shall, and Acquiror Sub shall comply cause its Subsidiaries to, and shall use its reasonable best efforts to cause its Representatives to, provide all cooperation that is necessary, customary or advisable and reasonably requested by Parent to assist Parent in the arrangement of any third party financing for the purpose of financing the aggregate Merger Consideration, any repayment or refinancing of debt contemplated by this Agreement or required in connection with all terms the Transactions and any other amounts required to be paid in connection with the consummation of the Commitment Letters Transactions and shall take all actions required on their part under the terms related fees and expenses of the Commitment LettersParent Entities (the “Financing”) (it being understood that the receipt of such Financing is not a condition to the Mergers); provided, including however, that nothing herein shall require such cooperation to the extent it would (A) unreasonably disrupt the conduct of the business or operations of the Partnership or its Subsidiaries, (B) require the Partnership or any of its Subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any liability or give any indemnities prior to the Closing for which it is not promptly reimbursed or simultaneously indemnified or (C) require the Partnership or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without limitationnotice or lapse of time, providing or both) under, the Lenders with all information that they may request and entering into appropriate loan agreements Partnership Organizational Documents, any applicable Laws or other agreements in order to obtain the Financingany Partnership Material Agreement.
(b) In Parent shall promptly, upon request by the event Partnership, reimburse the Partnership for all reasonable costs and expenses (including reasonable attorneys’ fees, but excluding the costs of the Partnership’s preparation of its annual and quarterly financial statements) incurred by the Partnership or any of its Subsidiaries or their respective Representatives in connection with 81 the Financing, including the cooperation of the Partnership and its Subsidiaries and Representatives contemplated by this Section 7.17, and shall indemnify and hold harmless the Partnership, its Subsidiaries 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 the arrangement of the Financing and any information used in connection therewith, except with respect to (a) any information provided by the Partnership or any of its Subsidiaries or (b) any fraud or willful misconduct by any such Persons.
(c) The Partnership shall 18.%2 deliver to Parent at least three (3) Business Days prior to the Closing one or more payoff letters in form and substance reasonably acceptable to Parent and including a release of all obligations (including guarantees (if any), but excluding any contingent indemnification obligations that are not then due and payable and that by their terms are to survive the termination of the Partnership Credit Agreements) and all related Liens upon payment in full of the payoff amounts stated therein (each, a “Payoff Letter”) executed by the holders of respective obligations under the Partnership Credit Agreements (or, if applicable, their agent or representative), as applicable, (%4) on or prior to the Closing Date, deliver all notices required pursuant to the terms of each Partnership Credit Agreement, as applicable, and other documents related thereto to facilitate the repayment of the obligations outstanding thereunder and (c) make arrangements for the holders of obligations thereunder (or, if applicable, their agent or representative) to deliver, subject to the receipt of the applicable payoff amounts, all related Lien release documentation to Parent prior to or concurrently with the Closing; provided that (i) in no event shall this Section 7.17(c) require the Partnership to cause any Lender shall notify Acquiror such satisfaction, termination or Acquiror Sub that it is withdrawing or terminating release other than substantially concurrently with the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied Closing and will not be waived or (ii) Acquiror has agreed all funds required to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror repayment shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersbe provided by Parent.
Appears in 1 contract
Financing. (a) Acquiror Buyer shall use reasonable best efforts to take, or cause to be taken, all actions and Acquiror Sub shall do, or cause to be done, all things necessary, proper or advisable (in its reasonable judgement) to arrange and consummate the Debt Financing at the Closing on the terms and conditions set forth in the Debt Commitment Letters, including using reasonable best efforts to: (i) comply with and maintain the Debt Commitment Letters in effect; (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on conditions described in the Debt Commitment Letters or on conditions no less favorable (taken as a whole) to Buyer (in the reasonable judgment of the Buyer); (iii) comply with and perform the obligations applicable to it pursuant to such Debt Commitment Letters; (iv) to the extent the conditions in Article II have been satisfied or waived, consummate the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters; and (v) satisfy (or obtain wavier thereof) on a timely basis all conditions applicable to it to obtain the Debt Financing that are within its control. If any portion of the Debt Financing expires or terminates or otherwise becomes unavailable, Buyer shall use reasonable best efforts to arrange for and obtain as promptly as reasonably practicable following the occurrence of any such event alternative debt financing (the “Alternative Financing”) in an amount sufficient to consummate the transactions contemplated hereby and perform all of its obligations hereunder on terms and conditions that are not materially less favorable or more onerous (including imposition of new conditions or expansion of existing conditions), in the aggregate, than those set forth in the Debt Commitment Letters, it being understood that if Buyer proceeds with any Alternative Financing, Buyer shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing. Nothing contained in this Section 6.05 or elsewhere in this Agreement shall require, and in no event shall the “best efforts”, “commercially best efforts” or “reasonable best efforts” of the Buyer be deemed or construed to require, the Buyer to (i) seek or obtain equity financing other than the Equity Financing, (ii) pay any fees in excess of those contemplated by any Debt Commitment Letters or the fee letters associated therewith (including the “flex” terms), (iii) agree to any other terms that are materially less favorable to the Buyer or the Acquired Companies than such corresponding material terms contained in or contemplated by the Debt Commitment Letters or the fee letters associated therewith (in either case, whether to secure waiver of any conditions contained therein or otherwise), including any “flex” provision therein, or (iv) bring suit or any other type of legal action against any Lender or other financing source with respect to any obligation under the Debt Commitment Letters or the fee letters associated therewith.
(b) Buyer shall take (or cause to be taken) all actions and do (or cause to be done) all things necessary, proper or advisable (in its reasonable judgment) to obtain the Equity Financing on the terms and conditions set forth in the Equity Commitment Letter, including to: (i) maintain the Equity Commitment Letter in effect, (ii) negotiate and enter into definitive agreements with respect to the Equity Financing on conditions described in the Equity Commitment Letters or on conditions no less favorable (taken as a whole) to Buyer (in the reasonable judgment of the Buyer), (iii) comply with and perform the obligations applicable to it pursuant to such Equity Commitment Letter, (iv) to the extent the conditions in Sections 2.01 and 2.02 have been satisfied or waived, consummate the Equity Financing, including enforcing its rights under the Equity Commitment Letter and causing the Equity Investors to fund the Equity Financing at the Closing, and (v) satisfy on a timely basis all conditions applicable to it in such definitive agreements that are within its control.
(c) Buyer shall not replace, amend or waive any Commitment Letter or any provision thereof (it being agreed that any Alternative Financing complying with the provisions hereof shall not be deemed an amendment, modification, waiver or replacement) without the Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such replacement, amendment or waiver would, or would reasonably be expected to, when taken together with any other amendments, modifications, or waivers: (i) delay or prevent the Closing, (ii) make the funding of any of the Financings (or satisfaction of the conditions to obtaining any of the Financings) less likely to occur, (iii) adversely impact the ability of Buyer to enforce its rights against the other parties to the Commitment Letters and shall take all actions required on their part under or the terms definitive agreements with respect thereto, the ability of Buyer to consummate the transactions contemplated by this Agreement to be consummated at the Closing or the likelihood of the consummation of such transactions to be consummated at the Closing, (iv) reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of any of the Financings (including by changing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount) to an amount below what is necessary to pay the Required Amount (after giving effect to other available financing), or (v) impose new conditions or adversely expand, amend or modify any of the existing conditions to the receipt of any of the Financings, or otherwise add, expand, amend or modify any other provision of the Commitment Letters, including without limitation, providing in a manner that would reasonably be expected to delay or prevent the Lenders with all information that they may request and entering into appropriate loan agreements funding of any of the Financings (or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any satisfaction of the conditions to any of the Financing Financings) at the Closing. Upon any permitted amendment, supplement, modification or replacement of any Commitment Letter (including with respect to any Alternative Financing) in accordance with this Section 6.05, the term “Commitment Letters” shall mean the Commitment Letters cannot be satisfied as so amended, supplemented, modified or replaced, and will not be waived or (ii) Acquiror has agreed references to any amendment to “Financings”, “Equity Financing”, “Debt Financing” and/or “Alternative Financing” shall including the financing contemplated by the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing as so amended, supplemented, modified or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable efforts to secure all or such portion of the Financing on terms no less favorable in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersreplaced.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (GPB Holdings II, LP)
Financing. (a) Acquiror Parent and Acquiror Acquisition Sub acknowledge and agree that, prior to the Effective Time, the Company and its Affiliates and its and their respective Representatives shall comply not incur any liability to any Person under any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.11 or Section 6.12 and that Parent and Acquisition Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Affiliates and its and their respective Representatives from and against any and all terms losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Commitment Letters Financing and shall take all actions required on any information utilized in connection therewith, except with respect to any information provided by the Company and its Affiliates and its and their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financingrespective Representatives.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Each of Parent and Acquisition Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror shall use its commercially reasonable best efforts to, take or cause to secure be taken, all actions and to do, or such portion cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Financing on the terms and conditions described in the Financing Commitments, including using its reasonable best efforts to: (i) enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments as promptly as practicable after the date hereof, but in no event later than the Closing, or on such other terms and conditions no less favorable in the aggregate to Acquiror Parent and Acquisition Sub than the terms and conditions contained in the Financing Commitments (provided that such other terms would not reasonably be expected to delay or prevent the Closing), (ii) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Acquisition Sub or their respective Representatives in the Debt Commitment Letters (or definitive agreements entered into with respect to the Debt Commitment Letters), (iii) accepting to the fullest extent all “market-flex” contemplated by the Debt Commitment Letters (including the fee letter relating thereto), (iv) enforcing its rights under the Debt Commitment Letters in the event of a breach by the Financing Sources that impedes or delays the Closing and, if necessary, seeking specific performance of the Financing Sources of their obligations thereunder and (iv) in the event that all conditions in the Debt Commitment Letters have been satisfied (or would be satisfied upon funding of the Equity Financing) cause the lenders and any other Persons providing Financing to fund the Financing at the Closing.
(c) Neither Parent nor its Affiliates shall agree to any amendments or modifications to, or grant any waivers of, any condition or other provision under the Financing Commitments without the prior written consent of the Company, except that Parent and its Affiliates may amend or otherwise modify (or waive any of its rights under) the Commitment Letters (including to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date hereof (which shall not be subject to any limitations or qualifiers)) if such amendment, modification or waiver would not reasonably be expected to prevent or materially impair or delay the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing, no amendment, modification or waiver shall be permitted without the Company’s prior written approval if such amendments, modifications or waivers would (i) reduce the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) below the amount required to consummate the Merger (including the amount required for the payment of the Aggregate Merger Consideration and any amounts payable pursuant to Section 3.3 and all associated costs and Expenses (including any refinancing of indebtedness of Parent or the Company required in connection therewith)), (ii) impose new or additional conditions or (iii) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Financing Commitments. Parent shall not release or consent to the termination of the obligations of the lenders under the Debt Commitment Letters, except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Commitment Letters. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 6.11 be construed as to require Parent to agree to, or accept, economic terms that are materially less favorable in the aggregate to Parent or Acquisition Sub than the economic terms contained in the Debt Commitment LettersLetters (assuming application of the “market flex” provisions) or otherwise pay any fees to the lenders which fees are more than de minimus amounts and are in excess of those contemplated in the Debt Commitment Letters and related fee letters, including the “flex” provisions thereof, as of the date hereof.
(d) After the date of this Agreement, in no event shall Parent or Acquisition Sub or any of their controlled Affiliates (which for purposes of this Section 6.11(d) shall be deemed to include each direct investor in Parent or Acquisition Sub or other Representatives, or any of Parent’s, Acquisition Sub’s or such investor’s financing sources or potential financing sources or other Representatives) (i) award any agent, broker, investment banker, financial advisor or other firm or Person, except for any Affiliate of Parent, any financial advisory role on an exclusive basis that would prohibit the provision of such financial advisory services to another Person in connection with the Merger or the other transactions contemplated hereby or (ii) prohibit or seek to prohibit any bank or investment bank or other potential provider of debt or equity financing, including the Debt Commitment Parties, from providing or seeking to provide financing or financial advisory services to any Person in connection with a transaction relating to the Company or its Subsidiaries or in connection with the Merger or the other transactions contemplated hereby. Acquiror Notwithstanding anything in this Agreement or the Confidentiality Agreement to the contrary, the Company hereby agrees that Parent and its Affiliates may provide Evaluation Material (as such term is defined in the Confidentiality Agreement) to, or enter into discussions, agreements, arrangements or understandings with, potential sources of debt or equity financing with respect to the Merger and the other transactions contemplated by this Agreement, and such potential sources of debt or equity financing shall immediately be deemed a “Representative” (as defined in the Confidentiality Agreement) thereunder; provided that the Affiliate of Parent that is a counterparty to the Confidentiality Agreement shall be responsible for any breach of the Confidentiality Agreement by any potential sources of debt or equity financing or its officers, directors, employees or other representatives with whom the Evaluation Material is shared, except to the extent such potential sources of debt or equity financing have agreed in a writing addressed to the Company, in the form of Exhibit A to the Confidentiality Agreement, to be bound by the provisions of the Confidentiality Agreement applicable to Representatives. In the event that any portion of the Financing becomes or could reasonably be expected to become unavailable in the manner or from the sources contemplated in the Financing Commitments, (i) Parent shall promptly notify Holdings if the Company and (ii) Parent and Acquisition Sub shall, and shall cause its Affiliates to, use their respective reasonable best efforts to arrange and obtain, and to negotiate and enter into definitive agreements with respect to, alternative financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement upon terms and conditions not less favorable, taken as a whole, to Parent and Acquisition Sub than those in the Financing Commitments, as promptly as practicable following the occurrence of such event (and, in any Lenders event, no later than the expiration of the Marketing Period); it being understood that, for the avoidance of doubt, in no event shall notify Acquiror the Guarantor be required to provide financing in excess of the amount set forth in the Equity Commitment Letter and in no event shall Parent or Acquiror Acquisition Sub be required to seek or obtain equity financing other than the Equity Financing. The definitive agreements entered into pursuant to this Section 6.11(d) or Section 6.11(b)(i) are referred to in this Agreement, collectively, as the “Financing Agreements.”
(e) Each of Parent and Acquisition Sub acknowledges and agrees that it neither the obtaining of the Financing or any alternative financing, nor the completion of any issuance of securities contemplated by the Financing or any alternative financing, is amending a condition to the Commitment LettersClosing, and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative financing, or the completion of any such issuance, subject to the applicable conditions set forth in Section 7.1 and Section 7.2.
(f) Parent shall (i) furnish the Company complete, correct and executed copies of the Financing Agreements or any alternative financing agreement promptly upon their execution, (ii) give the Company prompt notice of any material breach or threatened material breach by any party of any of the Financing Commitments, any alternative financing commitment, the Financing Agreements, or any alternative financing agreement of which Parent or Acquisition Sub becomes aware or any termination or threatened termination thereof of which Parent or Acquisition Sub becomes aware, and (iii) otherwise keep the Company reasonably and promptly informed of the status of its efforts to arrange the Financing (or any alternative financing), including by providing the Company with drafts of the definitive agreements or offering memoranda relating to the Financing a reasonable period of time prior to their execution or use.
Appears in 1 contract
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of To the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order extent necessary to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event pay all or any portion of the Financing becomes unavailable for any reason under the Commitment LettersPurchase Price, Acquiror Buyer shall use its commercially reasonable efforts to secure close a Financing (as defined herein) on terms reasonably acceptable to Buyer not less than five (5) business days prior to each time a payment is required to be made pursuant to Section 3 herein, provided that any such Financing shall not contain terms and conditions which are adverse to or otherwise prejudice the rights of the Seller Entities or otherwise limit Buyer’s ability to fulfill its obligations under this Agreement. Buyer shall use commercially reasonable efforts to satisfy, on or prior to each payment date, all requirements that are conditions to its consummation of such Financing and to the drawing down of the cash proceeds under the Financing required to fund the cash payment to the Seller Entities on such payment date. “Financing” means a debt and/or equity financing and/or financings as may be necessary in connection with the payment of all amounts that may become due and payable to the Seller Entities under Section 3. Without limiting the generality of the foregoing, Buyer shall (i) notify the Seller Entities and deliver any executed financing commitment letter or such portion fully executed term sheet, or amendments thereto, (ii) to the extent not prohibited by any applicable confidentiality or non-disclosure obligation (which Buyer shall use good faith and commercially reasonable efforts to avoid), provide to the Seller Entities copies of any financing commitment letters or fully executed term sheets as soon as practicable but in any event at least ten (10) business days prior to the close of the Financing on terms no less favorable contemplated by such commitment letter or term sheet and any definitive agreements entered into by Buyer or any of its Affiliates in connection with any such Financing and all executed amendments or modifications regarding any such letters or agreements, (iii) notify the aggregate Seller Entities of any assertion by any lender under any financing commitment letter or any other commitment letter, investor under any fully executed term sheet, or definitive agreements entered into in relation to Acquiror than the terms a Financing that any condition contained in the Commitment Lettersfinancing commitment letter, term sheet or definitive agreements entered into in relation to a Financing has not been satisfied or waived or cannot be a satisfied or waived at the time such condition is required to be satisfied and discuss with the Seller Entities at the Seller Entities’ reasonable request the status of any Financing, (iv) provide to the Seller Entities copies of any compliance certificate provided by Buyer to its existing lenders, and (v) prepare and provide to the Seller Entities a pro forma compliance certificate taking into account the consummation of any such Financing not less than five (5) business days prior to the Closing. Acquiror In addition to the foregoing, in any event, Buyer shall immediately notify Holdings if not enter into any Lenders shall notify Acquiror Financing or Acquiror Sub that it is amending other transaction which contains provisions which limit or restrict the Commitment LettersBuyer’s ability to fulfill its obligations to pay any of the Purchase Price in cash or in stock.
Appears in 1 contract
Samples: Acquisition Agreement (Inverness Medical Innovations Inc)
Financing. (a) Acquiror and Acquiror Sub shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing becomes unavailable for any reason under the Commitment Letters, Acquiror Parent shall use its commercially reasonable efforts to secure satisfy all conditions precedent to the availability of funds under the Facility Agreement. In the event that all conditions to the Facility Agreement have been satisfied, to the extent required to comply with its obligations hereunder, Parent shall use its commercially reasonable efforts to cause the lenders and the other Persons providing such financing under the Facility Agreement to fund such financing required to consummate the Offer and Merger (or such otherwise obtain alternative financing arrangements to consummate the Offer and Merger). In the event any portion of the Financing debt financing becomes unavailable on the terms no less favorable and conditions contemplated in the aggregate Facility Agreement, to Acquiror the extent required to comply with its obligations hereunder, Parent shall use its commercially reasonable efforts to arrange to obtain alternative financing as promptly as practicable following the occurrence of such event. Parent shall not enter into any amendment, modification or supplement to the Facility Agreement without the prior written consent of the Company, which consent shall not be unreasonably withheld, to the extent such amendment, modification or supplement imposes additional conditions precedent to the funding obligations thereunder or that reduces the amount of the financing committed thereunder. Notwithstanding the foregoing, Parent shall deliver a copy of any proposed amendment to the Facility Agreement to the Company not less than two business days prior to the terms contained in execution of the Commitment Letterssame. Acquiror Parent and Merger Sub shall immediately notify Holdings if give the Company prompt notice of any Lenders material breach by any party to the Facility Agreement or any termination of the Facility Agreement. Upon request of the Company, Parent and Merger Sub shall notify Acquiror or Acquiror Sub that it is amending keep the Commitment LettersCompany informed on the current status of the Financing.
Appears in 1 contract
Samples: Merger Agreement (Adams Respiratory Therapeutics, Inc.)
Financing. (a) Acquiror and Acquiror Sub Upon request by the Sellers, (i) Buyer shall comply with all terms keep the Sellers informed on a reasonably current basis in reasonable detail of the Commitment Letters and shall take all actions required on their part under status of its efforts to arrange the terms of the Commitment LettersFinancing, including without limitationmaterial activity and timing considerations and (ii) shall provide to the Sellers copies of all final definitive documents relating to the Debt Financing (together with the Debt Commitment Letter, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order “Debt Financing Documents”). Without limiting the foregoing, Buyer shall notify the Sellers promptly, if at any time prior to obtain the Financing.
(b) In the event that Closing Date, (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Debt Financing in the Commitment Letters cannot be satisfied and will not be waived Documents expires or is terminated for any reason, (ii) Acquiror has agreed to there is a material breach of, or default under, any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Debt Financing or otherwise makes it more difficult for Acquiror to obtain the Financing Document by any party thereto of which Buyer becomes aware, (unless Holdings has agreed iii) a counterparty indicates in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event")it will not provide, then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event or it refuses to provide, all or any portion of the Financing becomes unavailable for any reason under contemplated by the Commitment LettersLetters or the Debt Financing Documents, Acquiror shall use its commercially reasonable efforts as applicable, in the case of the Debt Financing, on terms and conditions no less favorable to secure Buyer than the terms and conditions contemplated in the Debt Commitment Letter (including any “flex” provisions applicable thereto), or (iv) Buyer becomes aware of any fact, circumstance, event or other reason that it reasonably expects will result in Buyer not being able to obtain on a timely basis all or such any portion of the Financing to be funded at the Closing on substantially the terms described in the Equity Commitment Letter or the Debt Financing Documents, as applicable. It is understood and agreed that nothing in this Section 4.11(a) shall require Buyer to disclose any information that is subject to attorney-client privilege or the disclosure of which would result in the breach of any of Buyer’s confidentiality obligations set forth in the Debt Commitment Letter (as in effect on the date hereof).
(b) Buyer shall use its reasonable best efforts to take, or cause to be taken, all appropriate actions and to do, or cause to be done, all things reasonably necessary to arrange and to obtain the Equity Financing and Debt Financing on a timely basis on the terms and conditions set forth in the Equity Commitment Letter and Debt Financing Documents, as applicable, including by using reasonable best efforts to (i) maintain in full force and effect the Commitment Letters on the terms and conditions contained therein until the transactions contemplated by this Agreement are consummated or until this Agreement is terminated in accordance with its terms, (ii) enter into definitive agreements with respect to the Debt Financing on terms and conditions no less favorable favorable
(a) Buyer shall provide the Sellers copies or a written notice, as applicable, of the Commitment Letters as amended, replaced, modified or waived promptly after the time any such replacement, amendment, modification or waiver is effected and (b) any amendment or modification to the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or Persons fulfilling similar roles or providing commitments in respect of the aggregate Debt Financing shall not be restricted by this sentence to Acquiror than the extent otherwise not constituting a Prohibited Amendment. Upon any such replacement, amendment or other modification of, or waiver under, the Commitment Letters or any other Debt Financing Documents in accordance with this Section 4.11(b), the term “Equity Commitment Letter” or “Debt Commitment Letter” or “Debt Financing Documents”, as applicable (and consequently the terms contained in “Debt Financing,” “Equity Financing” and “Financing” shall mean the Equity Financing and Debt Financing contemplated by such Equity Commitment Letters. Acquiror Letter or Debt Commitment Letter or Debt Financing Document, as applicable, as so replaced, amended, modified or waived), shall immediately notify Holdings if any Lenders shall notify Acquiror mean such Equity Commitment Letter or Acquiror Sub that it is amending the Debt Commitment LettersLetter or Debt Financing Document, as applicable, as so replaced, amended, modified or waived.
Appears in 1 contract
Financing. (a) Acquiror Buyer hereby acknowledges that the receipt of the Debt Financing (or any alternative financing) is not a condition to their obligations to consummate the transactions contemplated by this Agreement. Buyer acknowledges that the failure to consummate the Closing because they have not obtained the Debt Financing would be a willful and Acquiror Sub material breach of this Agreement. Buyer shall use its reasonable best efforts to obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter (including the “flex” provisions) as promptly as reasonably practicable on the terms and conditions described in the Debt Commitment Letter, including using its reasonable best efforts to (i) maintain in effect the applicable Debt Commitment Letter pursuant to its terms, (ii) comply with all terms its obligations under the applicable Debt Commitment Letter and any definitive agreements relating thereto (the “Debt Financing Documents”), (iii) negotiate and (subject to the satisfaction of the conditions set forth in Sections 9.1 and 9.3) enter into the applicable Debt Financing Documents on a timely basis on terms and conditions (including the flex provisions) contained therein or otherwise not less favorable to Buyer in the aggregate that those contained in the applicable Debt Commitment Letters Letter or Alternative Debt Commitment Letter, (iv) satisfy on a timely basis all conditions applicable to Buyer in the applicable Debt Financing Documents that are within its control (other than, for the avoidance of doubt, any condition where the failure to be so satisfied is a direct result of the failure by the Companies or the Sellers to furnish information required to be delivered pursuant to Section 7.8(c) or otherwise comply with their respective obligations hereunder), (v) enforce all of its rights under or with respect to the applicable Debt Financing Documents and (vi) consummate the applicable Debt Financing at or prior to the Closing Date. Buyer shall take keep the Stockholder Representative and the Companies informed on a reasonable basis and in reasonable detail, upon request, of the status of its efforts to arrange the Debt Financing (including providing, upon request, the Stockholder Representative and the Companies with copies of all actions required on their part under definitive agreements related to the Debt Financing). Buyer shall give the Stockholder Representative and the Companies prompt notice upon having knowledge of any material breach by any party of any of the Debt Financing Documents or any termination of any of the Debt Financing Documents or any event, circumstance or development that makes the consummation of the Debt Financing materially less likely to occur. Other than as set forth in Section 7.8(b), Buyer shall not, without the prior written consent of the Stockholder Representative, amend, modify, supplement or waive any of the terms of the Debt Commitment LettersLetter or the Debt Financing Documents or any other provision of, or remedies under, the Debt Financing Documents, in each case to the extent such amendment, modification, supplement or waiver would reasonably be expected to have the effect of (A) reducing the aggregate amount of Debt Financing to an amount below the amount required to consummate the transactions contemplated by this Agreement, (B) making the funding of the Debt Financing less likely to occur, (C) amending, modifying, supplementing or waiving the conditions or contingencies to the Debt Financing (including without limitationimposing additional conditions or contingencies) in a manner that could have the effect of preventing, providing impeding, adversely affecting the Lenders with all likelihood of or delaying the Closing, (D) adversely affecting Buyer’s rights against the lenders party to the Debt Commitment Letter on the date hereof or (E) adversely affecting the ability of Buyer to consummate the transactions contemplated by this Agreement prior to the End Date; provided that, subject to the foregoing, the Debt Commitment Letter may be amended to include additional commitment parties thereto, it being understood and agreed that the Debt Commitment Letter may be amended to include the Persons previously identified by Buyer to the Sellers. Anything to the contrary herein notwithstanding, in no event will Buyer be under any obligation to disclose any information that they may request and entering into appropriate loan agreements or other agreements in order is subject to obtain any applicable legal privilege (including the Financingattorney-client privilege).
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event If all or any portion of the Debt Financing becomes unavailable for any reason under the Commitment Lettersunavailable, Acquiror Buyer shall use its commercially reasonable best efforts to secure all arrange to promptly obtain the Debt Financing or such portion of the Debt Financing from alternative sources, in an amount sufficient, when added to available cash and marketable securities, available lines of credit or other sources of immediately available funds, and any portion of the Debt Financing that is available, to pay in cash all amounts required to be paid by Buyer in connection with the transactions contemplated by this Agreement (“Alternative Debt Financing”), including obtaining a new financing commitment letter (the “Alternative Debt Commitment Letter”) and a new definitive agreement with respect thereto that provides for such financing on terms no not less favorable favorable, (as reasonably determined by Buyer), in the aggregate aggregate, to Acquiror Buyer than the terms contained in the Debt Commitment LettersLetter on the date hereof and with lenders reasonably satisfactory to Buyer. Acquiror In such event, the term “Debt Financing” as used in this Agreement shall immediately notify Holdings be deemed to include any Alternative Debt Financing, and the term “Debt Commitment Letter” as used in this Agreement shall be deemed to include any Alternative Debt Commitment Letter.
(c) Prior to the Closing, each of the Companies shall, and shall cause the Companies’ Subsidiaries to, use its and their respective commercially reasonable efforts, and to use its and their commercially reasonable efforts to cause its and their respective officers, directors, employees, accountants, consultants, investment bankers, legal counsel, agents and other advisors and representatives (collectively, the “Advisors”) to use their respective commercially reasonable efforts to provide all reasonable customary cooperation in connection with the arrangement, syndication and consummation of the Debt Financing or any permitted replacement, amendment or modification thereof or any Alternative Debt Financing for the transactions contemplated by this Agreement (collectively, the “Available Financing”), including providing information regarding the Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that is requested by Buyer at least five (5) Business Days prior to the Closing Date and using commercially reasonable efforts to: (i) participate in a reasonable number of meetings (including one-on-one meetings or conference calls with the parties acting as agents or arrangers for, and prospective lenders of, the Debt Financing, and senior management and the employees, investment bankers, attorneys, accountants and other Advisors of the Companies), lender presentations, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies and other syndication activities, in each case that are customary for financings of a type similar to the Available Financing; (ii) furnish Buyer and the Debt Financing Sources, as promptly as reasonably practicable, with the financial statements set forth in item 4 on Exhibit C of the Debt Commitment Letter; (iii) assist Buyer and its Debt Financing Sources in the preparation of (A) any syndication documents and materials, including information memoranda, lender presentations and other marketing documents customarily used to arrange financing similar to the Available Financing (collectively, the “Marketing Documentation”); and (B) materials for rating agency presentations; (v) furnish Buyer and the Debt Financing Sources with customary authorization letters with respect to the presence or absence of material non-public information and accuracy of the information contained therein to be included in the Marketing Documentation and cooperate with the marketing efforts of Buyer and the Debt Financing Sources for any portion of the Available Financing; (v) assist in the negotiation of and assisting in the preparation of any credit or other agreements, pledge or security documents, or other certificates or documents, and the respective schedules and exhibits thereto, in connection with the Available Financing; (vi) cooperate with Buyer’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Available Financing; (vii) assist Buyer in obtaining surveys and title insurance as reasonably requested by Buyer provided, however, there shall be no obligation to deliver an indemnity to obtain a non-imputation endorsement; (viii) facilitate the obtaining of (A) audit reports and consents of accountants and auditors with respect to financial statements and other financial information for the Companies for inclusion in any Marketing Documentation and (B) pay-off letters, control agreement releases, intellectual property security agreement releases, mortgage releases, hedge terminations, lien terminations and other similar terminations or releases, in each case as reasonably requested by Buyer and customary for financings similar to the Available Financing; (ix) otherwise reasonably facilitate the granting of a security interest (and perfection thereof) in collateral (including assisting with the drafting of disclosure schedules and perfection certificates and providing original copies of all certificated securities with transfer powers executed in blank); and (x) provide financial statements (including monthly financial statements) in the form and to the extent provided internally to senior management of the Companies as promptly as practicable (but in no event less than five (5) Business Days) after providing such financial statements internally to senior management of the Companies; provided, that none of the Sellers or the Companies shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Available Financing that would be effective prior to the Closing; and provided, further, that the effectiveness of any documentation (other than customary authorization and representation letters) executed by any Company with respect thereto shall be subject to the consummation of the Closing. The Companies shall not be required to take any action hereunder that unreasonably interferes with the operation of their business. Any information provided to Buyer or any other Person pursuant to this Section 7.8(c) shall be subject to the Confidentiality Agreement. Between the date hereof and the Closing Date, if to the Knowledge of Sellers any Lenders information specifically provided by any of the Acquired Companies to Buyer in connection with the Debt Financing (which, for the avoidance of doubt, shall notify Acquiror not include the Schedules or Acquiror Sub any projections, forecasts or forward-looking information) contains any misstatement of any material fact, the Companies shall use commercially reasonable efforts to provide to Buyer such information as may be necessary to correct such information. Buyer acknowledges and agrees that none of the Sellers nor any Company nor any of their respective Affiliates or any of their respective directors, officers, employees, representatives and advisors (including legal, financial and accounting advisors) shall have any responsibility for, or incur any liability to any person under or in connection with, the arrangement of the Debt Financing or any Alternative Debt Financing that Buyer may raise in connection with the transactions contemplated by this Agreement, and that Buyer shall indemnify and hold harmless the Stockholder Representative, the Sellers, the Companies and their respective Affiliates and directors, officers, employees, representatives and advisors (including legal, financial and accounting advisors) from and against any and all Losses suffered or incurred by them solely and directly in connection with the arrangement of the Debt Financing or any Alternative Debt Financing and any information utilized in connection therewith (other than (i) information provided by the Sellers or the Companies expressly for use in connection therewith or (ii) to the extent arising from the willful misconduct, gross negligence, fraud or bad faith of any of the Sellers or the Companies). Buyer shall, and shall cause its Affiliates to, promptly, upon written request, reimburse the Companies for all reasonable and documented out-of-pocket costs or expenses incurred by the Companies in connection with providing financing cooperation provided for assistance requested by Buyer pursuant to this Section 7.8(c). The Companies hereby consent to the use of their logos in connection with the Available Financing; provided that such logos are used solely in a manner that does not violate any existing contractual obligation of the Companies and does not harm or disparage the Companies or their Subsidiaries. Notwithstanding anything to the contrary, the condition set forth in Section 9.3(b), as it is amending applies to the Commitment Lettersobligations of the Acquired Companies under this Section 7.8(c), shall be deemed satisfied unless the Debt Financing has not been obtained primarily as a result of the willful and material breach by the Companies of their obligations under this Section 7.8(c).
Appears in 1 contract
Financing. The Buyer shall, and shall cause its affiliates to, use their commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, appropriate or advisable to arrange the Financing on the terms and conditions described in the Financing Commitment (provided that the Buyer may replace or amend the Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Financing Commitments as of the date hereof, or otherwise replace or amend the Financing Commitment so long as (a) Acquiror and Acquiror Sub shall comply with all terms after such actions, the Financing Commitment does not include any additional conditions precedent that are not contained in the Financing Commitment provided to the Sellers as of the Commitment Letters date of this Agreement, and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the Financing.
(b) In such actions are not reasonably likely to delay, or diminish the event that likelihood of, the Buyer obtaining the Financing (clauses (a) and (b) together being referred to as the “Financing Modification Requirements”; for purposes of this Agreement, the term “Financing Commitment” shall be deemed to include any such replacement or amended financing), including using commercially reasonable efforts to (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to maintain in effect the Financing in the Commitment Letters cannot be satisfied and will not be waived or any Alternative Financing (as defined below), (ii) Acquiror has agreed to any amendment satisfy on a timely basis all conditions applicable to the Buyer to obtaining the Financing set forth therein, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Financing Commitment Letters that establish additional or any Alternative Financing, and (iv) consummate the Financing on the terms and conditions contemplated by the Financing Commitments or any Alternative Financing at or prior to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination EventClosing. In the event all or any portion of the Financing becomes unavailable for any reason under on the Commitment Lettersterms and conditions contemplated in the Financing Commitment, Acquiror the Buyer shall, and shall cause its affiliates to, use its their commercially reasonable efforts to secure all or such portion of arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Financing transactions contemplated by this Agreement on terms no and conditions that are not materially less favorable in beneficial to the aggregate to Acquiror Buyer than the terms those contained in the Financing Commitment Letters. Acquiror shall immediately notify Holdings if as in effect on the date of this Agreement as determined in the reasonable good faith judgment of the Buyer and consistent with the Financing Modification Requirements (any Lenders shall notify Acquiror or Acquiror Sub that it is amending such alternative financing actually obtained by the Commitment LettersBuyer, “Alternative Financing”) as promptly as practicable following the occurrence of such event.
Appears in 1 contract
Financing. (a) Acquiror Prior to the GME Change of Ownership Approvals Submission Date, the Purchaser shall deliver to the Seller one or several bank statements indicating the balance of its bank accounts (“Payment Accounts”) having sufficient funds necessary and Acquiror Sub shall comply with solely reserved for the satisfaction of all terms obligations of the Commitment Letters Purchaser with respect to the GME Allocated Purchase Price. Prior to the Cut-Off Date, the Purchaser shall deliver to the Seller one or more bank statements indicating the balance of Payment Accounts having sufficient funds necessary and shall take solely reserved for the satisfaction of (i) all actions required on their part under the terms obligations of the Commitment LettersPurchaser with respect to the Shanghai Subsidiaries Allocated Purchase Price and (ii) any other amounts required to be paid by the Purchaser or the Company Subsidiaries (from and after each Closing) in connection with the consummation of the transactions contemplated by this Agreement. The Purchaser shall maintain such sufficient funds in the Payment Accounts until the earliest to occur of (a) the Shanghai Subsidiaries Payment Date; (b) payment of the applicable Purchaser Termination Fee due and payable under Section 8.5 following termination of this Agreement; (c) twenty (20) Business Days after termination of this Agreement under circumstances in which no claim for payment of the Purchaser Termination Fee has been made by the Seller; and (d) if a claim for payment of the Purchaser Termination Fee has been made by the Seller in connection with the termination of this Agreement, including without limitation, providing a final determination by a court of competent jurisdiction that no Purchaser Termination Fee is due and payable to the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order to obtain the FinancingSeller.
(b) In the event that (i) any Lender shall notify Acquiror or Acquiror Sub that it is withdrawing or terminating the Commitment Letters or that any of the conditions to the Financing in the Commitment Letters cannot be satisfied and will not be waived or (ii) Acquiror has agreed to any amendment to the Commitment Letters that establish additional conditions to the Lenders' obligations to provide the Financing or otherwise makes it more difficult for Acquiror to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect any such amendment) (each a "Funding Termination Event"), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or any portion of the Financing Available Funds becomes unavailable for unavailable, the Purchaser shall notify the Seller as soon as reasonably practicable, but in any reason under the Commitment Lettersevent within five (5) Business Days, Acquiror shall and use its commercially reasonable best efforts to secure all arrange alternative financing, and in an amount sufficient to timely consummate the transactions contemplated by this Agreement within the time periods required or such portion of the Financing on terms no less favorable set out in the aggregate to Acquiror than the terms contained in the Commitment Letters. Acquiror shall immediately notify Holdings if any Lenders shall notify Acquiror or Acquiror Sub that it is amending the Commitment Lettersthis Agreement.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (TTM Technologies Inc)
Financing. (a) Acquiror and Acquiror Sub Buyer shall comply with all terms of the Commitment Letters and shall take all actions required on their part under the terms of the Commitment Letters, including without limitation, providing the Lenders with all information that they may request and entering into appropriate loan agreements or other agreements in order use reasonable best efforts to obtain the Financing.
(b) In Financing on the event that terms described in the Financing Commitments, including using reasonable best efforts (i) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions described therein or on other terms not materially less beneficial to Buyer and not reasonably likely to result in the Closing not occurring pursuant to Section 1.3(a) (but in no event including any Lender shall notify Acquiror or Acquiror Sub terms that it is withdrawing or terminating the Commitment Letters or that any of expand the conditions precedent to the Financing in the Commitment Letters cannot be satisfied and will not be waived or Financing), (ii) Acquiror has agreed to any amendment satisfy on a timely basis all conditions applicable to Buyer set forth in the Debt Commitment Letters that establish additional conditions Letter and the Investment Commitment Letter and (iii) to the Lenders' obligations to provide consummate the Financing or otherwise makes it more difficult for Acquiror at the Closing, including enforcing the obligations of the lenders and other Persons providing the Financing contemplated by the Financing Commitments to fund the Financing. Buyer shall keep the Company apprised of the status of, and any developments in, its efforts to obtain the Financing (unless Holdings has agreed in writing that Acquiror can effect including any such amendment) breach by a party to the Financing Commitments)and shall deliver to the Company true, correct and complete copies of all definitive agreements for the Financing promptly when entered into (each a "Funding Termination Event"subject to the redaction of pricing information), then Acquiror shall immediately notify Holdings of such Funding Termination Event. In the event all or that any portion of the Financing financing described in the Debt Commitment Letter becomes unavailable for any reason under on the terms and conditions set forth in the Debt Commitment LettersLetter, Acquiror Buyer shall promptly notify the Company, and Buyer shall use its commercially reasonable best efforts to secure all or obtain alternative debt financing as promptly as possible following such portion of the Financing event, including from alternative financing sources, on terms no not materially less favorable in the aggregate to Acquiror Buyer than the terms contained those in the Debt Commitment LettersLetter and not reasonably likely to result in the Closing not occurring pursuant to Section 1.3(a) (and in no event including any terms that expand the conditions precedent to the debt Financing in the Debt Commitment Letter) that will enable Buyer to consummate the transactions contemplated by this Agreement. Acquiror Buyer shall immediately notify Holdings if not agree to or permit any Lenders amendment, supplement or other modification that reduces the total amount of the Financing or imposes any additional condition precedent to the availability of the Financing contemplated by the Debt Commitment Letter in any material respect ;without the Company’s written consent. The Buyer shall notify Acquiror or Acquiror Sub that it is amending not, and shall use its reasonable best efforts to cause Investor not to, consent to the assignment of any of Credit Suisse Securities (USA) LLC’s commitments under the Debt Commitment Letters.Letter without the prior written consent of the Company. 57
Appears in 1 contract
